The Law of the Land

Does an American or international court get to say what it is?

SHOULD AN international tribunal -- and not a U.S. court -- be the ultimate arbiter of the laws of this country? The Supreme Court wrestled with that question yesterday in an extraordinary session that examined the country's obligations to comply with rulings from international courts, as well as the president's power to enforce those rulings. We hope the answer it comes up with is: no.

The questions arose in the case of Jos¿ Ernesto Medell¿n, a Mexican national convicted in the early 1990s in the gang rape and murder of two Texas teenagers. Mr. Medell¿n, who has spent most of his life in the United States, was read his Miranda rights in English and Spanish and was assigned two lawyers before he was convicted and sentenced to death by a jury. Mr. Medell¿n claimed on appeal that his rights had been violated because Texas failed -- as it has acknowledged -- to inform him of his right under the Vienna Convention to contact the Mexican consular office after his arrest. The United States, Mexico and some 160 other countries are signatories to the convention. Texas state appeals courts rejected the argument, concluding that under state law Mr. Medell¿n should have made the claim earlier in the legal process.

Mr. Medell¿n was one of 51 Mexican nationals on death row in the United States who claimed to have been denied consular access; Mexico lodged a challenge at the International Court of Justice, the judicial arm of the United Nations. The United States signed on to an Optional Protocol in the 1960s that gave the ICJ jurisdiction to resolve disputes between member countries. The ICJ found in Mexico's favor and sent the case back to the United States with instructions that the convictions and sentences of the 51 Mexican nationals be reviewed -- Texas law notwithstanding.

President Bush's impulse to honor the country's international commitments and his attempt to respect the ICJ's ruling was, under the circumstances, correct. After all, it is important that the United States take seriously its obligation to allow foreigners consular access if it wants U.S. citizens abroad to be given the same accommodations. But Mr. Bush did not consult with Congress about a legislative fix or negotiate with Texas on how both its laws and the spirit of the ruling could be respected. Instead, in 2005, he essentially ordered Texas to comply.

The Texas courts balked -- and justifiably so. Even the Optional Protocol dictates that ICJ rulings be implemented in accordance with -- not in contravention of -- the laws of the country in question. And the Supreme Court, in a case decided last year, has already ruled that "nothing in the ICJ structure or purpose suggests that its interpretations were intended to be binding on U.S. courts." Mr. Bush's attempt to "give effect" to the ICJ ruling through his memorandum trampled on the separation of powers and the principles of federalism.

The justices should again reaffirm the supremacy of U.S. courts to decide questions of U.S. law, including treaties, and disavow the president's heavy-handed and inappropriate assertion of executive power. Texas, like other states, should faithfully inform every foreign national it arrests of his or her right to consular access. This goes beyond the dictates of the Vienna Convention, but it's an easy and painless way to ensure compliance with reasonable obligations.

One irony lost in this debate was Mr. Bush's wise decision -- in the midst of ordering Texas to comply with the ICJ ruling -- to pull the United States out from under the jurisdiction of the ICJ. With any luck, the country won't soon have to face another constitutional mess of this type.