The United States is fast approaching a showdown over its commitment to the rule of international law as Texas prepares to carry out the scheduled Aug. 5 execution of convicted killer and rapist Jose Medellin.
On July 14, the International Court of Justice at The Hague ordered the US government to "take all measures necessary" to prevent the execution of Mr. Medellin and four other Mexican nationals awaiting execution dates on death row in Texas.
But Medellin is in the custody of Texas authorities, not the federal government, and the Texas governor says he intends to push forward with the execution next Tuesday.
Congress could take quick action to defuse the international imbroglio, but legal analysts say intervening in the Medellin case would be politically risky for national lawmakers in an election year.
The case highlights a heated debate over the relevance of international legal rulings in the American justice system. It is a flash point in an ongoing rivalry pitting American law against international law, and the controversy is playing out in an emotional case involving race, rape, murder, and capital punishment Texas-style.
"We don't really care where you are from; if you commit a heinous and despicable crime you are going to face the ultimate penalty under our laws," says Allison Castle, a spokeswoman for Texas Gov. Rick Perry (R). "No foreign national is going to receive any additional protection than a Texas citizen would."
US dispute with Mexico
The Medellin case is at the center of a long-running dispute between Mexico and the United States over the failure of US officials in the past to notify the Mexican consulate when Mexican citizens are arrested in the US. Such notification is required under an international treaty, the Vienna Convention on Consular Relations.
The US government acknowledged the treaty violations and apologized.
But Mexico wanted more. It took its case to the International Court of Justice (ICJ), also known as the World Court. In 2004, the court sided with Mexico and ordered the US to conduct special hearings in the Medellin case and 50 other cases involving Mexicans sentenced to death in various states.
The World Court ordered the American courts to determine whether the lack of consular notification prejudiced the outcome of any trial. If so, the conviction and death sentence should be overturned, the court said.
But in neighboring Texas, officials have taken a different stance. The Texas courts ruled in the Medellin case that he is not entitled to a new round of appeals despite the World Court decision.
Medellin has lived in the US since age 3 and speaks fluent English, but because he never obtained US citizenship he was entitled to be notified of his right to consult with Mexican consular officials after his arrest. As part of his original case, a Texas judge ruled that the lack of consular notification in Medellin's case had not undercut the fairness of his trial. But the World Court ordered a new hearing anyway.
In an effort to resolve the international dispute, President Bush issued a memorandum directing the Texas courts to conduct the new hearings. Again, Texas refused.
The issue went to the US Supreme Court, which ruled in March that both the World Court decision and the president's memo were not binding on the Texas courts. That cleared the way for Medellin's execution.
But it didn't absolve the US government from compliance with the Vienna Convention on Consular Relations and compliance generally with World Court decisions enforcing the convention.
"There is no doubt that the US has an international obligation here, and it sure looks like it won't comply with it," says Duncan Hollis, a professor and international law expert at Temple University's Beasley School of Law.
Notorious in Texas
The Medellin case is notorious in Texas. Medellin admitted involvement in the gang rape and murder of two girls. The girls, ages 14 and 16, took a shortcut home through the woods, where they were spotted by members of a street gang. Medellin and other gang members chased the girls, raped them, and then killed them to prevent them from reporting the crime.
The case is becoming notorious for another reason. It threatens to undercut US standing in the world by suggesting a lack of respect for the ICJ, analysts say.
Some legal experts warn that the government's posture could endanger Americans traveling, living, or working overseas.
"Americans who are detained abroad may well lose the critical protection of ensured access to United States consular officers," wrote Lucy Reed, president of the American Society of International Law (ASIL), in a recent letter to leaders in Congress.
Ms. Reed and nine past presidents of ASIL are urging Congress to quickly pass legislation to create a legal mechanism to enforce the World Court ruling.
A measure was introduced in Congress, but there has been no effort to pass the bill, or even debate it. Analysts say the issue is radioactive in an election year.
"On the one hand this is a story of international law and treaty obligations that bind the United States of America," says Professor Hollis. "On the other hand this is the story of a gangbanger in Texas who raped and killed two teenaged girls."
Hollis adds, "Somebody in Congress may see the value of protecting the treaty obligations and the national interests of the United States and also be concerned about the political fallout for voting for a statute that might be used against them [in an election campaign] because you are perceived as soft on crime."