June 29, 2001

12:51 AM

Court rules U.S. broke rights lawsThe world court has ruled the U.S. ignored the international legal rights of two German-born brothers who were executed for murder. More excecution controversy.
posted by adnan (22 comments total)

the dispute is not about the death penalty itself, it's about the right of foreigners to receive assistance from the consular under the Vienna Convention. The US neither notified the German consular of the case nor did it inform the LaGrand brothers of their right to assistance from the consular, which the world court considered a basic right. Also the U.S. state of Arizona ignored the court's order to delay the execution of one of the brothers (the other one had already been executed).
posted by RoyalTS at 3:54 AM on June 29, 2001

According to the article, the world court claims to have legal authority over the U.S. yet has no independent means of enforcement. Would somebody mind providing some background for me -- what's the point of this court, what is it trying to accomplish?
posted by gd779 at 5:03 AM on June 29, 2001

I don't see what the problem is. Commit a crime on US soil, face a US punishment. Do they really think that a German lawyer will save them? It is still a jury of peers.
posted by ttrendel at 5:13 AM on June 29, 2001

Disjointed comments to follow:

Another factor, I believe the two felons moved to the U.S. when they were very young (three or four or so). Sounds like they were very Americanized given their conduct.

The enforcement of the World Court comes through economic sanctions levied by the U.N. Security Council. Somehow I doubt the U.S. will ever come under any sanctions.

Another point is that the U.S. attorneys argued that the World Court rulings were not binding in this case, yet argued the completely opposite theory during the Iranian Embassy imbroglio.

Now, I don't recall reading anything about extra-national courts in the Constitution. Furthermore, I did not vote on electing anyone to appoint World Court judges over me. My personal opinion is that they therefore have no authority over the United States or its citizens.
posted by CRS at 6:24 AM on June 29, 2001

Uh oh, I can see lots of Trilateral Commission talk looming on the horizon...

Don't be stupid, ttrendel - it was not a jury of peers, it was a jury of Americans. In the same way that you (presuming you are American, sorry) would have access to the American embassy or consul if you were accused of a crime in, say, Iran or China, Germans have access to the same diplomatic resources if they commit a crime in the US. If Americans expect the rights of protection diplomacy affords us when we are abroad, surely you're not saying we shouldn't be extending the same rights of protections to foreigners who travel here?
posted by m.polo at 6:24 AM on June 29, 2001

My personal opinion is that they therefore have no authority over the United States or its citizens.

Wha? They're German citizens. Born in Germany by a German mother. Lets stay on topic.

Sounds like they were very Americanized given their conduct.

What, pray tell, does "Americanized" mean? I guess after that 50th big mac you lose your international legal rights.
posted by skallas at 6:47 AM on June 29, 2001

They moved to the US while they were very young. They had no accent at all, which shows that they spoke English enough as a second language during their linguistic development period of growth. What is not certain is when they started considering themselves German citizens, as they didn't know they had consular rights until other prisoners informed them, and according to the CNN article, didn't inform the Consulate themselves until all other legal avenues were explored.

They were fully immersed in American culture, and participated in that culture as American citizens would. They were, from outside perspectives, not distinguishable from Americans. That is what "Americanized" means.

One wonders if they would have been given consular protections had they talked with the Colonel Klink accent; proving that they "ain't from around here."
posted by dwivian at 7:11 AM on June 29, 2001

They were fully immersed in American culture, and participated in that culture as American citizens would.

Well, as permanent residents, they didn't have the right to vote, or to any of the other privileges of citizenship. How culturally acclimatised they were doesn't matter a jot: you're either a citizen, in which case you get the carrot and the stick, or you're not, in which case you get consular access. (My girlfriend's flatmate is still not a citizen, in spite of having moved to the US when she was 8 years old: having the INS as your de facto supreme court makes quite a difference.)

This is not some commie pinko UN World Order plot against the US. It's one of the most important tenets of foreign relations: as was demonstrated only recently, when the White House demanded consular access to the crew of the US spy plane brought down in China.

Had the two German natives been naturalised US citizens, this wouldn't have been an issue: as everyone's passport reminds them, dual citizenship, even when it's recognised, disqualifies you from consular representation in the country where you hold your other passport.

My personal opinion is that they therefore have no authority over the United States or its citizens.

Well, given a choice between your personal opinion and the Vienna Convention, as ratified by the US in 1969, I think I know which one carries more weight. (Article 36(b) is the relevant one here.)

Since 1976. the US has executed over 400 foreigners: these two weren't the first to be "informed... without delay" of their rights under the convention.
posted by holgate at 7:46 AM on June 29, 2001

Ack. "not to be". You know what I meant.
posted by holgate at 7:46 AM on June 29, 2001

Holgate has summed it up perfectly. The US has clearly breached sec 36(B).
posted by jay at 8:21 AM on June 29, 2001

There are a number of different and unrelated issues in this case.

First, the two men were in fact entitled to consular consultation. The US has admitted the fault, apologized to the German government, and put into place new procedures which will try to prevent similar things from happening in the future.

Second, the World Court's order to delay the execution was not binding. More on that in a moment.

Third, the World Court declared in this that its orders were binding. The World Court is wrong.

The court system in the US is directly chartered by the Constitution. Article Three describes the power of the courts.

The courts of the US are one of three separate, co-equal branches of the government. Each branch has powers the others do not have and each of the three is limited. The idea is that no single branch should ever become overwhelmingly powerful to the exclusion of the others. This is part of our protection against tyranny.

Congress also has treaty powers. Any treaty ratified by Congress has the power of law, and if a treaty overrides a previously-passed law then the treaty supersedes it. This happened when the Congress ratified the Berne Convention, for instance, which changed copyright law in the US.

But Congress cannot and never has been able to override the Constitution itself with laws. If Congress passes a law which contradicts the Constitution, the law is invalid.

Congress cannot use its treaty powers as a way of overriding the Constitution. If it could, then Congress would become all-powerful and our governmental system would collapse. Therefore Congress can't give the World Court binding power over affairs in the US by ratifying a treaty, unless every judge in the World court were appointed by the President and ratified by the Senate (as prescribed by Article III for seating Federal judges), which is unlikely. But even if that did happen, the World Court could not be coequal or higher ranking than the US Supreme Court, because the Constitution explicitly makes that court the highest in the land.

Our system is based on accountability, and ultimately all power derives from the voters. Congress is directly chosen by the voters. The President is elected by the voters. The President and Congress select judges, and though they serve for life, if need be Congress can impeach them and remove them from the bench. (Which has happened.)

It is constitutionally unacceptable that there ever be a court with binding powers to issue orders in the US which was not directly answerable to the citizens and voters of the US.

The World Court issued a stay on the execution, but the governer of Arizona was quite right to ignore it. I don't believe that he ordered to execution to proceed just to spite them; the proper behavior for him would have been to proceed as if the World Court had not existed, because in legal truth they didn't WRT this case.

The World Court has now declared that its orders are binding. The World Court can stuff it.
posted by Steven Den Beste at 8:48 AM on June 29, 2001

Congress cannot use its treaty powers as a way of overriding the Constitution.

GATT/WTO treaties did and continue to do exactly that. Very few Congressman have taken it to the Supreme Court or set about trying to invalidate it. The fact is, laws have and are always selectively enforced by governments. In politics its called “diplomacy,” in common vernacular it’s called “hypocrisy.”

“So there is something very unfair about the system. It is an unconstitutional approach to managing trade. We cannot transfer the power to manage trade from the Congress to anyone. The Constitution is explicit. `Congress shall have the power to regulate foreign commerce.' We cannot transfer that authority. Transferring that authority to the WTO is like the President transferring his authority as Commander in Chief to the Speaker of the House.”
Statement of Ron Paul of Texas
posted by capt.crackpipe at 9:59 AM on June 29, 2001

"I guess after that 50th big mac you lose your international legal rights."

You've certainly lost your sense of self-respect.
posted by joaquim at 11:24 AM on June 29, 2001

I'll bow to those who know the US Constitution better than I do, though I think capt.crackpipe is right to suggest that the constitutionality of international treaties is more contentious than Steven contends.

Congress also has treaty powers.

Actually, that's an interesting anomaly within the separation of powers, since the consitution (II.2) gives that authority to the President: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present." It blends executive and legislative power, which is why there's plenty of annotation on the clause.

The mistake was made, the apology given, the procedures corrected. The effect of this judgement is little more than a warning to foreign travellers in the US to carry the consulate's phone number. But it also points to the way in which international law (the unhelpful term for what is, essentially, the legal relationship between treaties and constitutions) is being redefined: as a former colleague of mine pointed out in his analysis of the Pinochet extradition:

" The new international law has arrived, with the rights of individuals at last taking their proper place among the other rules that regulate international relations. Those who resist these changes - or choose not to take a position - will find themselves left behind by a process that has become inevitable."

Is a violation of an international treaty enough to throw the judicial process into doubt? In certain cases, quite possibly: there are laws which govern the fairness of a trial, and those laws are the basis for appeal. That precise relationship is just the kind of thing that should occupy the Supreme Court, although there's certainly no way external judgements have any meaning. That's why I appreciate the UK's Human Rights Act, which allows legal judgements to be based upon the EU convention, but made by British judges.

(There's a curious doublethink, though, in the tendency of the US to run to the WTO for binding decisions in trade disputes with the EU, given the constitutional prohibition on international jurisdiction. Similarly, the international criminal court or the war crimes tribunal are deemed to be good enough to try furriners like Milosovic, but not good honest Americans like Henry Kissinger.)

One tangential thing: who in the media came up with the term "World Court"? The correct title is The International Court of Justice, and the shorthand seems to play into the hands of those who talk of UN World Government.

(aaron: you're right about the general ignorance of states' rights, at least in the UK, though probably less so in Germany with its Lander. It certainly took the BBC a good few minutes to explain the procession through the courts last November.)
posted by holgate at 11:36 AM on June 29, 2001

Captain, on the contrary the ratification of GATT and NAFTA were justified precisely by Congress's grant of power over international trade. Those treaties do not override the Constitution, for precisely that reason. The Constitution does not explicitly state how international trade will be governed; it leaves it to Congress to decide. So Congress can if it wishes delegate that to international control.

However, the Constitution explicitly describes the courts, their powers and the means by which they are created and maintained, and Congress can't override that either by law or by treaty.

But Congress could not, for instance, ratify a treaty which removed our right of trial by jury. That is guaranteed by the Sixth Amendment and Congress does not have the power, even using the treaty rights clause, to remove it. Congress can only enact treaties which have effects which it would otherwise have the ability to control through normal laws (which is quite a lot).

Holgate, the Constitution grants the President the right to negotiate treaties, but they become law if and only if they are ratified by Congress. Ultimate power in this area lies with Congress. I was just trying to save steps, because the involvement of the President in treaties doesn't change the fact that treaties cannot override the Constitution.

In answer to your specific question: "Is a violation of an international treaty enough to throw the judicial process into doubt?" The answer is an unqualified no. The Judicial process derives directly from the Constitution and international treaties cannot change them. Treaties can change the law, but the law doesn't control the process, except in detail.

In the case of the WTO, if a country gets a ruling in its favor then it has the privilege under treaty to impose punitive trade sanctions. That is the enforcement aspect of this. The WTO itself also doesn't have any direct enforcement capability.

When people go to the World Court, they're doing so essentially for propaganda reasons. It is embarassing to lose a case there. That part's fine.

What I'm objecting to is the World Court's contention that it actually has any power to enforce its decrees. It doesn't.

Germany made a mistake. If, one day before that execution, it wanted a stay then it shouldn't have visited The Hague. It should have gone to the Federal Court controlling the jurisdiction where the trial took place, to ask for a stay. Then it should have lodged a case in US court claiming a miscarriage of justice and demanding a new trial on that basis. There's a fair chance it would have been granted; it certainly would have been considered.
posted by Steven Den Beste at 1:15 PM on June 29, 2001

Completely agree with you on your last point. (And it's intriguing that Arizona, which introduced Miranda into the legal vocabulary, has a history of this kind of thing.)

There's an interesting US Appeals Court judgement which engages with a number of the issues we've discussed here:

the Vienna Convention itself prescribes no judicial remedy or other recourse for its violation, let alone vacatur of a conviction. Cf. Breard, 118 S.Ct. 1356 (denying stay of execution based on violation of consular notification provisions, and stating that "neither the text nor the history of the Vienna Convention clearly provides a foreign nation a private right of action in United States' courts to set aside a criminal conviction and sentence for violation of consular notification provisions.").

There's the usual amount of judicial wiggle-room in the preceding paragraphs to suggest that denial of consular assistance might, in some circumstances, contribute to a violation of due process. But this still makes the Convention's legal status in the USA risible, given that there is neither a right of state action, nor a prescribed judicial remedy. Which raises a number of interesting questions, as to what international treaties actually achieve. As the second judgement notes:

Faithful adherence to our treaty obligations is important not only to the foreign relations of the United States but also to the integrity of our criminal justice system.

The only sanction, it appears, is for the kind of tit-for-tat withdrawal of rights to US nationals abroad. And that's a pretty depressing state of affairs.
posted by holgate at 2:21 PM on June 29, 2001

Constitutionally, a treaty is a law, with all the same characteristics as a law. If the United States or a state in the Union, or a citizen or corporation here violates a treaty provision, a foreign individual or organization could bring suit in Federal court for enforcement of that treaty provision, and if the court found in their favor then all the normal mechanisms for enforcing court judgements (up to and including direct military force by the President) could be brought to bear to guarantee enforcement.
posted by Steven Den Beste at 2:51 PM on June 29, 2001

Steven “Not a strict constructionist” Den Beste.

What I'm objecting to is the World Court's contention that it actually has any power to enforce its decrees. It doesn't.

Judiciaries have never had any enforcement mechanism. Jackson refused to endorse the Supreme Court ruling that the Cherokee Nation had legal rights, then commited genocide against them. The World Court has the same problem. Since enforcement is supposed to be done by appellees, most of them (the US standing out heavily here) pretty much refuse to follow them, regardless of merit.

So we have system that simply doesn’t work, since the UN asks nations to slap their own wrists. Look at this case: these guys has their right to counsel taken away, then were killed. The World Court asked Arizona to delay the trial til their opinion was released, and they refused. That seems pretty egregious to me.

— Capt. “armchair anarchist” Crackpipe
posted by capt.crackpipe at 3:54 PM on June 29, 2001

But because the Vienna Convention doesn't prescribe a remedy, only a course of action to obeyed, the judiciary, taking heed of the "normal mechanisms" by which it derives a remedy, is suprememly reluctant to make new law and construe one. Which makes it a binding law without a binding punishment.

So the captain has a point: in practical terms, it's up to the other branches to enforce this thing, whether legislatively by creating a framework of remedies, or through executive policy.

It could even end up as a tort.
posted by holgate at 4:48 PM on June 29, 2001

Captain, the US Marshals Service enforces court orders, by force if necessary. Also, the President is sworn to use the power of the executive branch (not that they always comply).

In 1956, when the Supreme Court ruled 9-0 in Brown v Board of Education that the Arkansas schools must become integrated, the governor of Arkansas called out the National Guard to prevent black students from entering formerly white-only high schools. Eisenhower sent in the US Army.

However, there isn't anyone sworn to carry out the orders of the World Court. It's not merely that the World Court has no eforcement powers; no-one enforces its orders. There's no "World Marshals Service".

And again, the point was that if Germany wanted to stop the execution it should have gone to a US Federal Court, which really did have jurisdiction.
posted by Steven Den Beste at 7:36 PM on June 29, 2001

The Marshalls’ boss is the Attorney General, who answers to the President, not the Courts. (My Pops worked with Marshalls a lot.)

Its probably a smarter way to do it, to have enforcement all under one branch. Otherwise, we probably would’ve seen an armed insurrection between the Justices, Executives and Congress. Sort of like the police battles in New York, way back.

I do understand your other point.
posted by capt.crackpipe at 8:37 PM on June 29, 2001