washingtonpost.com
U.S. Quits Pact Used in Capital Cases
Foes of Death Penalty Cite Access to Envoys

By Charles Lane
Washington Post Staff Writer
Thursday, March 10, 2005; Page A01

The Bush administration has decided to pull out of an international
agreement that opponents of the death penalty have used to fight the
sentences of foreigners on death row in the United States, officials
said yesterday.

In a two-paragraph letter dated March 7, Secretary of State Condoleezza
Rice informed U.N. Secretary General Kofi Annan that the United States
"hereby withdraws" from the Optional Protocol to the Vienna Convention
on Consular Relations. The United States proposed the protocol in 1963
and ratified it -- along with the rest of the Vienna Convention -- in 1969.

The protocol requires signatories to let the International Court of
Justice (ICJ) make the final decision when their citizens say they have
been illegally denied the right to see a home-country diplomat when
jailed abroad.

The United States initially backed the measure as a means to protect its
citizens abroad. It was also the first country to invoke the protocol
before the ICJ, also known as the World Court, successfully suing Iran
for the taking of 52 U.S. hostages in Tehran in 1979.

But in recent years, other countries, with the support of U.S. opponents
of capital punishment, successfully complained before the World Court
that their citizens were sentenced to death by U.S. states without
receiving access to diplomats from their home countries.

The Supreme Court is scheduled to hear oral arguments March 28 in the
case of a Mexican death row inmate in Texas who is asking the justices
to enforce an ICJ decision in favor of Mexico last year. That case has
attracted wide attention in Mexico and caused a diplomatic rift between
the Bush administration and the government of Mexican President Vicente Fox.

Rice is scheduled to meet with Fox today in Mexico in preparation for a
summit meeting at President Bush's ranch in Crawford, Tex., later this
month.

The administration's decision does not affect the rest of the Vienna
Convention, which requires its 166 signatories to inform foreigners of
their right to see a home-country diplomat when detained overseas. But
it shows that Washington's desire to counteract international pressure
on the death penalty now weighs against a long-standing policy of
ensuring the United States a forum in which to enforce its citizens'
allegations of abuse.

"The International Court of Justice has interpreted the Vienna Consular
Convention in ways that we had not anticipated that involved state
criminal prosecutions and the death penalty, effectively asking the
court to supervise our domestic criminal system," State Department
spokeswoman Darla Jordan said yesterday.

Withdrawal from the protocol is a way of "protecting against future
International Court of Justice judgments that might similarly interpret
the consular convention or disrupt our domestic criminal system in ways
we did not anticipate when we joined the convention," Jordan added.

The administration's action comes after its Feb. 28 decision to grant 51
Mexicans on death row in Texas and elsewhere new state court hearings,
as the ICJ had ordered.

But withdrawal from the protocol means that the United States will not
have to bow to the ICJ again, legal analysts said.

Some said the decision would weaken both protections for U.S. citizens
abroad and the idea of reciprocal obligation that the protocol embodied.

"It's encouraging that the president wants to comply with the ICJ
judgment" in the Mexicans' case, said Frederic L. Kirgis, a professor of
international law at Washington and Lee University. "But it's
discouraging that it's now saying we're taking our marbles and going home."

The State Department, however, notes that fewer than 30 percent of the
signatories to the Vienna Convention had agreed to the protocol. Among
those that had not done so are Spain, Brazil and Canada, officials said.

Bush's decision to enforce the ICJ judgment in the case of the Mexicans
"should ensure that our withdrawal is not interpreted as an indication
that we will not fulfill our international obligations," said Jordan of
the State Department.

Meanwhile, the president's decision has thrown the Supreme Court case
regarding the Mexicans into limbo. Some legal analysts suggest the case
may now be moot.

Attorneys for Jose Ernesto Medellin, a convicted murderer on death row
in Texas who is seeking review of his assertion that a lack of consular
access harmed his case at trial, have asked the justices to put the case
on hold until after Medellin has had his hearing in Texas state court.

The Texas attorney general's office, meanwhile, issued a statement
Tuesday saying, "We respectfully believe" that the president's decision
"exceeds constitutional bounds for federal authority."