In January 1998, the Department of State released its Publication 10518, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them. Prepared in the Office of the Legal Adviser, the booklet contains “instructions and guidance relating to the arrest and detention of foreign nationals, deaths of foreign nationals, the appointment of guardians for minors or incompetent adults who are foreign nationals, and related issues pertaining to the provision of consular services to foreign nationals in the United States.” The foreword points out that cooperation of federal, state and local law enforcement agencies in ensuring treatment of foreign nationals in accordance with the instructions not only will permit the United States to comply with its consular legal obligations domestically, but also will help ensure that the United States can insist upon “rigorous compliance by foreign governments with respect to United States citizens abroad.”

Among the puzzling aspects of the Breard episode was the Clinton administration’s claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard’s execution lay exclusively in the hands of the Governor of Virginia. The ICJ’s Order provided that “[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings.” The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, there would be no authority in the federal Government to require a postponement of the execution. As the administration explained to the Supreme Court:

Article 36(1) of the Vienna Convention on Consular Relations provides that (a) “[nationals . . . shall have the same freedom with respect to communication with and access to consular officers,” and that (b) “[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” In Breard v. Greene, the Supreme Court nearly recognized that, under the Convention, the individual petitioner had actionable rights that had been violated. The Court concluded, however, that the rights were “defaulted” when not pursued in the state courts, that the errors would not be prejudicial, and that the subsequendy enacted federal Antiterrorism and Effective Death Penalty Act limited the petitioner’s “ability to obtain relief based on violations of the Vienna Convention.”

The U.S. Government’s position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government’s amicus filings at the court of appeals and the Supreme Court denied that Paraguay’s claims belonged in federal court (or indeed in any court at all); at die International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration of a treaty-based claim. The haste with which the Supreme Court denied a stay in Breard’s case foreclosed adequate consideration of the justiciability of such claims in domestic courts and also effectively barred Paraguay from achieving the relief it sought on the international plane.

The AJIL Board of Editors wishes to announce the retirement of the Co-Editors in Chief, Professors Theodor Meron of the New York University School of Law and Detlev Vagts of Harvard Law School. As of the October 1998 issue, the editorial leadership will be assumed by Professors Jonathan Charney of the Vanderbilt University School of Law and W. Michael Reisman of Yale Law School.

In 1968 the United States Supreme Court decided Zschernig v. Miller, a foreign relations case that has been characterized as unique. An Oregon probate statute provided for escheat of a decedent’s property in preference to a nonresident alien’s claim to inherit it unless the alien’s country (1) allowed United States citizens to inherit under similar circumstances, (2) allowed U.S. citizens to receive payment here of funds inherited there, and (3) gave foreign heirs the right to receive the proceeds of Oregon estates without confiscation. Residents of then East Germany, who were the heirs of an Oregon decedent, challenged the constitutionality of the statute. The Supreme Court struck down the statute, finding that Oregon probate and appellate judges were basing their decisions on “foreign policy attitudes, the freezing or thawing of the ‘cold war.’”

The Board of Editors takes great pleasure in announcing that the Francis Deák Prize for 1998 was awarded to Professors Jutta Brunnée and Stephen J. Toope for their article Environmental Security and Freshwater Resources: Ecosystem Regime Building, which appeared in the January 1997 issue at page 26. The authors are both members of Canadian law faculties, Professor Brunnée at the University of British Columbia, and Professor Toope at McGill University.

Leave aside the question whether the indication of provisional measures by the International Court of Justice in the Breard case was binding on the United States as a matter of international or domestic law. Scholars will continue to differ on this question; government decision makers will reach their own conclusions. Leave aside that the state of Virginia violated a solemn treaty obligation, a treaty that the Supreme Court is obliged to uphold as the supreme law of the land. Without denigrating the power of these arguments, a less contentious case can be made for the granting of a stay—a case based less on compulsion than on civility.