US death penalty creates international snarl
In battle over whose law prevails, Texas bucks World Court order staying executions.
HOUSTON — Since it became mandatory in 1966, the Miranda warning has grown so common that even Americans who've never had a brush with the law know they have the right to remain silent and seek counsel.
But critics say those warnings don't go far enough for foreigners. They say international law demands an additional warning in such cases: You have the right to speak to your consulate. It's a right the US insists on for Americans abroad, yet doesn't always adhere to at home. Now, a recent World Court order is forcing the US to confront that incongruity.
Earlier this month, the International Court of Justice ordered a stay of execution for three Mexican nationals who claim they weren't given access to their consulates when arrested in the US. It's the third time in five years that a foreigner has accused the US of such a violation.
Texas, which is holding two of the Mexicans, says it is not bound by the World Court and will go ahead with the executions. Oklahoma, holding the third, is still considering its position.
Such defiance of the World Court is nothing new: Previous orders have been disregarded by states claiming the order was not binding. But legal scholars say this time it's different. For the first time, the court has made it clear that the mandate is binding.
That means the international court can sanction the US for disobeying it, should Texas go ahead with the executions - which could spur international tension. The case comes at a critical time for the US, whose relations with some countries are already strained because of conflict over Iraq.
THE right to talk to a representative of one's country if arrested is protected under the 1963 Vienna Convention on Consular Relations, on which the US remains a signatory. In fact, just months after taking office, President Bush cited the treaty when demanding that US consulate officials be allowed to visit the crew of a surveillance plane that made an emergency landing in China.
"This is a very important treaty. Your government wants access to you abroad, and you will want access to your government," says Jordan Paust, an international-law professor at the University of Houston.
Frequently, local law-enforcement has not alerted consular officials of foreigners' arrests. That has profound implications in capital cases, especially for countries such as Mexico that do not administer the death penalty and refuse to extradite people facing that punishment.
The two previous cases before the World Court involve Walter LaGrand of Germany and Angel Breard of Paraguay, both of whom received stays of execution for US violation of the Vienna treaty. In Mr. LaGrand's case, the German consulate was informed 10 years after his arrest for murdering an Arizona bank manager during a robbery. And in Mr. Breard's case, Paraguayan consular officials said they would have advised him to handle his rape and murder charges differently in Virginia, had they been in contact with him.
But Arizona and Virginia officials held that US law supersedes international law, and both men were executed. Germany, unlike Paraguay, did not withdraw its case from the World Court after the execution and received a final ruling that the US had violated the Vienna treaty.
THE question as to which law - state, federal, or international - takes precedence is tricky, says David Dow, a constitutional-law professor at the University of Houston and a member of the legal team for Cesar Fierro, one of the Mexicans who received a temporary stay of execution. Even if the federal government is bound by the treaty, states may not see it that way. Certainly, Texas does not.
"According to our reading of the law and the treaty, there is no authority for the federal government or this World Court to prohibit Texas from exercising the laws passed by our legislature," Gene Acuña, a spokesman for Texas Gov. Ricky Perry, told the Associated Press.
But that, say some legal experts, ignores the US Constitution. "Treaties signed with other countries are the law of the land," says Richard Graving, an international-law professor at South Texas College of Law in Houston.
The US could go into federal court and order Texas and Oklahoma to comply with the World Court order, but that action is months away because none of the three cases have an execution date yet. In the meantime, says Professor Paust, educating local law enforcement about their responsibility to foreign nationals should be the government's top priority.
Indeed, after the LaGrand and Breard executions, the US State Department launched an aggressive effort in that direction, mailing out brochures and pocket cards to police officers, and holding seminars for prosecutors.
Still, Paust doesn't believe the government has done enough to inform local police of the convention's requirements.
"All you have to do is notify the accused or tell the foreign consulate that you have one of their nationals," he says, "and everything is solved."