- The Washington Times - Monday, March 28, 2005

The Supreme Court today will hear the appeal of a Mexican national, on death row for a rape-murder, whose case was ordered reviewed by the International Court of Justice at The Hague.

Mexico sued the United States at the world tribunal, saying that 52 Mexicans facing American death sentences were denied their legal rights under a 1963 international treaty ratified by about 160 countries, including the United States.

The case highlights the debate over the power of international law over the United States, given new attention by recent Supreme Court decisions.

Ruling March 2 to strike down the death penalty for juveniles, the justices cited international concerns as one influence on their decision. Justice Anthony M. Kennedy wrote of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

American University law professor and Supreme Court observer Stephen Wermiel said that case and others fall within a heated debate over international law at the high court. “There are some cases where international law has a direct bearing,” he said, adding that cases involving foreign nationals or other countries cannot be decided “without some awareness of how international law relates to what you’re ruling.”

A more controversial category of cases finds the justices “taking note of evolving international standards as a way of measuring values and trends and societal terms,” Mr. Wermiel said.

“What we’re seeing increasingly,” he said, “[is] the court wants to be conscious of the United States as a player on a global stage, not as an isolated entity.”

Mr. Wermiel said the justices are split on the significance of international law and precedent, with Justices Antonin Scalia and Stephen G. Breyer at opposite ends of the debate.

Justices Scalia and Breyer engaged in a panel discussion at American University in January over the constitutional relevance of foreign court decisions, during which Justice Scalia remarked: “I do not use foreign law in the interpretation of the United States Constitution.” He also said the United States has never and does not at present have the “same moral and legal framework as the rest of the world.”

Justice Breyer said there are “so many ways in which foreign law influences law in the United States Supreme Court and the other courts as well.”

The justices may take varied approaches to today’s case, which stems from an appeal by Jose Medellin, one of five gang members sentenced to death for raping and murdering two teenage girls in a Houston park in 1993. Texas courts denied multiple appeals by Medellin. But his case got new life in 2003, when the Mexican government sued the United States at the ICJ after learning of the case through letters Medellin wrote from death row.

Mexico argued the United States violated a portion of the Vienna Convention on Consular Relations, which allows foreigners the right to help from their embassies when imprisoned abroad. The ICJ agreed. However, in a related development this month, the Bush administration withdrew from the portion of the treaty at issue.

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