States' legal role grows globally Sovereignty: As nations look internationally for judicial models and redress, the United States -- individually and together -- must cope.

Sun Journal

June 01, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- When the governments of the United States and Paraguay square off in coming months in the World Court in a battle over international law, another interested sovereign -- the Commonwealth of Virginia -- will be watching closely.

Ordinarily, an American state would have little if anything to say about a global legal conflict. But it was Virginia that provoked this particular fight, and Virginia is likely to be much affected by the outcome, along with all the U.S. states and Americans in general.

Virginia's refusal to heed a plea by the World Court to spare the life of a death row inmate, Angel Francisco Breard, has cast light on a little-noticed development in the post-Cold War world.

Law is going increasingly global, and the federal and state governments are influencing and being affected by laws that are developing beyond U.S. shores.

Peter Spiro, a law professor at Hofstra University, says "global regimes are increasingly coming to implicate actions that, in our Constitution, have been within the exclusive realm of the state governments."

The enforcement of the death penalty by U.S. states, Spiro says, is the area where American law "most clearly is trespassing on crystallizing international norms." But the two-way linkages -- and conflicts -- between U.S. law and the law of nations are not confined to capital punishment:

As soon as Minnesota settled, for $6.5 billion, its lawsuit against the tobacco industry, the Guatemalan government launched its own $800 million lawsuit, patterned on Minnesota's.

Over the protest of the State Department, New Jersey's Legislature is preparing to ban state investment in Swiss financial institutions as a way to force them to return assets to the families of Holocaust victims.

In a federal court in Florida, a Miami restaurateur who fled to his native Italy to avoid a murder charge is being tried by Italian authorities under Italian -- not U.S. -- law, because of Italy's refusal to extradite him for a U.S. trial.

President Clinton is asking Congress to pass an "international crime-control act" to give the United States wider powers to retrieve fugitives from overseas.

At the World Trade Organization in Geneva, a number of U.S. policies -- including the harbor-maintenance tax and a law that protects sea turtles -- are under challenge as violations of international trade rules.

California's Proposition 187, which prohibits giving state benefits illegal immigrants, is facing international protests by Mexico and other Latin American nations.

When U.S. and international law are at odds, it is unlikely, Spiro says, that the World Court or other tribunals will be able to impose their will on the United States. "They don't have the means to do so," he says.

Still, Spiro suggests that U.S. states that defy global law may encounter other forms of pressure. Foreign countries, he speculates, might boycott such states in trade and tourism, especially if U.S. policies are found to run afoul of World Trade Organization mandates.

Whether or not there is enforcement of global laws, Spiro and others suggest, the trend to make law on a grand scale is proceeding.

"This is the story of the next 10 to 20 years -- the role of U.S. law in the world as a whole," says John R. Bolton, senior vice president of the American Law Institute and a former senior legal official in the Justice and State departments.

Bolton expresses worry about the possibility of global law "trumping" the U.S. Constitution.

"There are people out there who want to bind the U.S. into the corpus of international law -- and that was what the Breard case was about," he says.

In Breard's case, the Paraguayan national was executed in Virginia in April despite arguments that his rights under an international treaty, guaranteeing him access after his arrest to a consular officer from his native country, had been violated.

The Supreme Court refused to require Virginia to wait, as the World Court (formally known as the International Court of Justice) had asked it to do until that court could weigh Paraguay's assertion. It was the first time a world tribunal had tried to influence a U.S. criminal case directly, and when it was rebuffed by Virginia, the Breard case exploded on the world scene as a cause celebre.

Although Breard is dead, the dispute between Paraguay and the U.S. government will continue to unfold in the World Court, beginning with Paraguay's filing of legal briefs this month.

Other U.S. states also will be dealing with criminal cases involving foreign nationals. New Jersey's courts, for example, are working through another consular-rights case, involving an Ecuadorean, Carlos Cevallos Bermeo, who has been convicted of murder.

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