President Bush Orders Courts to Give Foreign Nationals on Death Row Further Review

The White House has ordered state courts to consider the complaints of 51 Mexican foreign nationals on death row in the United States. This Executive Order is an abrupt international policy shift for the Bush administration and comes just weeks before the U.S. Supreme Court is scheduled to consider what effect U.S. courts should give to a ruling in favor of the 51 foreign nationals by the United Nations’ highest tribunal, the International Court of Justice at the Hague. The World Court found that the U.S. government had failed to comply with the requirements of the Vienna Convention on Consular Relations, and it directed that U.S. courts give the Mexican foreign national inmates “meaningful review” of their convictions and sentences, without applying procedural default rules to prevent consideration of the defendants’ claims. In his memorandum to the attorney general, President Bush stated that he had determined “that the United States will discharge its international obligations under the decision of the International Court of Justice” and he ordered the state courts to grant review. It is unclear if the Administration’s decision will affect the U.S. Supreme Court’s consideration of the case.

(International Herald Tribune, March 4, 2005). See Foreign Nationals and Supreme Court.
The text of the President’s memo is below:

The White House
February 28 [2005]

MEMORANDUM FOR THE ATTORNEY GENERAL
SUBJECT: Compliance With the International Court of Justice in Avena

The United States is a party to the Vienna Convention on Consular
Relations (the “Convention”) and the Convention’s Optional Protocol
Concerning the Compulsory Settlement of Disputes (Optional Protocol),
which gives the International Court of Justice (ICJ) jurisdiction to
decide disputes concerning the “interpretation and application” of the
Convention.

I have determined, pursuant to the authority vested in me as President
by the Constitution and laws of the United States of America, that the United
States will discharge its international obligations under the decision
of the International Court of Justice in the Case Concerning Avena and
Other Mexican Nationals (Mexico v. United States of America (Avena),
2004 I.C.J. 128 (Mar. 31), by having State courts give effect to the
decision in accordance with general principles of comity in cases filed
by the 51 Mexican nationals addressed in that decision.