Uphold support for world court

April 19, 2004|By Pieter H. F. Bekker

THE RECENT ruling by the International Court of Justice rebuking the United States in a case brought by Mexico, while appearing to be a setback, actually serves the best interests of the nation and its citizens.

The case was brought by Mexico after it discovered that 51 Mexican citizens on death row in U.S. prisons had been denied their right to enlist the assistance of a Mexican consular official upon arrest by the U.S. authorities.

To be clear, the issue was not the death penalty, so that the ruling cannot be characterized as an example of the world court embracing the anti-death-penalty movement, as its critics might contend. The ruling does not order the United States to halt the execution of all foreigners within its borders; it applies only to certain Mexicans, not all aliens convicted in the United States.

The Mexican case really was about the sanctity of a promise made by the United States to abide by its treaty obligation to notify arrested foreigners of their right to contact a consular official of their nation. This consular notification operates like a Miranda warning ("You have the right to remain silent," etc.) to persons arrested abroad - including Americans abroad. That's why the United States became a signatory to the Vienna Convention on Consular Relations and expressly agreed to dispute resolution by the world court in the first place - to protect Americans.

The rule upheld by the court, the principal judicial organ of the United Nations, with headquarters in The Hague, Netherlands, is vitally important to American interests because it guarantees the right to consular notification also for the millions of Americans traveling abroad every day. For Americans arrested in foreign lands where criminal penalties are severe or the legal systems are capricious and inconsistent, the Vienna Convention, as upheld by the world court, provides a layer of legal protection that can prove a lifeline at the most critical moments. In short, the decision is a victory for universal due process.

The March 31 ruling cannot be appealed. In evaluating how to respond to the adverse ruling, the United States should consider that countries that lose in the world court invariably comply to avoid being seen as "rogue" states defying international law. That's why Nigeria has cooperated with Cameroon in evacuating troops from an occupied peninsula that the court ruled in 2002 is Cameroonian territory. Even Libya gave prompt implementation to the 1994 ruling requiring it to withdraw from oil-rich territory taken by force from Chad.

To disregard this ruling, or the court altogether, would place the United States in the notorious company of countries such as Iran and apartheid-era South Africa, which flagrantly defied prior world court rulings that went against them.

None of this is lost on U.S. officials, nor are they unaware of the stakes - notwithstanding the battle cry to restore supposedly lost U.S. sovereignty.

The United States was a principal force in the movement for international adjudication at the turn of the century and again after World War II, when the International Court of Justice statute was adopted by the United Nations and the idea of such a court took hold.

Today, in an age of terrorism, the United States more than ever depends on world court rulings to better protect its interests, as in the decision handed down six months ago that the U.S. attacks on Iranian oil platforms in 1987 and 1988 did not violate the U.S.-Iran friendship treaty. The United States also relied on that treaty to obtain a ruling against Iran when the U.S. Embassy in Tehran was seized in 1979 and American diplomatic staff were taken as hostages.

In a world under the rule of international law that this country has been instrumental in formulating and that it professes to observe, it should neither surprise nor trouble Americans that the policies and actions of even the world's remaining superpower are subject to review under well-recognized international legal standards.

No state is immune from international law, and the world court plays an essential role as its guardian. Despite the occasional setback, the United States should continue to play a constructive role in The Hague, if only because it is in America's national interest, and that of its citizens, to do so.

Pieter H. F. Bekker, a Dutch lawyer with a New York City firm, served as a lawyer for the world court from 1992 to 1994.

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