The Vienna Convention
The U.S. must ensure that arrested foreigners can contact their consulates.

Monday, March 31, 2008

JOS¿ ERNESTO Medell¿n is a Mexican national who has lived in the United States for most of his life. In 1993, he was arrested in connection with the rape and murder of two Texas girls. Although he was read his Miranda rights and was defended by two court-appointed lawyers, Texas law enforcement officials failed to inform Mr. Medell¿n of his right under the Vienna Convention to notify the Mexican consulate of his arrest. Mr. Medell¿n was ultimately convicted and sentenced to death, but he failed to raise the Vienna Convention argument at trial or during sentencing and did so in federal court only after he filed a habeas petition.

Mexico filed a grievance with the International Court of Justice (ICJ), the judicial arm of the United Nations. The ICJ ruled three years ago that the United States had violated the rights of Mr. Medell¿n and 50 other Mexican nationals after failing to inform them of their Vienna Convention rights. The ICJ declared that the United States should review these cases to determine whether the defendants had been harmed by the lack of notification; the court also concluded that procedural rules, such as those in Texas barring introduction of new arguments in appellate proceedings unless they've been raised earlier in the process, could not be used to block a new review. After the ICJ ruling, President Bush issued a memorandum saying that the states should comply with the judgment of the ICJ. Texas balked, giving rise to the case decided by the Supreme Court last week.

A 6 to 3 majority wisely decided that rulings from the ICJ do not automatically trump state laws and procedures. It also ruled that if the president believed it was important to respect the ICJ edict he should have engaged Congress and the states to fashion a solution that would give the ruling legal effect in the United States without explicitly undermining U.S. and state sovereignty. In a brief filed earlier in the Medell¿n case, Texas suggested that the president, with the state's cooperation, could create a panel of former federal judges to review the 51 cases. This would avert constitutional conflict, while respecting the spirit of the ICJ ruling and signaling to the world the United States' recognition of its treaty obligations. As Justice John Paul Stevens wrote in his concurring opinion, "The Court's judgment, which I join, does not foreclose further appropriate action by the State of Texas."

In the future, the federal and state governments should be meticulous in upholding the stricture of the convention; law enforcement officers should be told that they must make foreign nationals aware of their Vienna Convention rights, just as they now inform them of their right to remain silent. It's the least the country can do, especially if it expects its nationals to receive fair treatment in a foreign land.