Recent op-eds
Lawlessness North of the Border
By JOHN B. BELLINGER III
New York Times
Published: July 17, 2009
Washington
PRESIDENT OBAMA has rightly emphasized America’s commitment to complying with international law. It is surprising, then, that he has so far taken no steps to comply with decisions of the International Court of Justice requiring the United States to review the cases of 51 Mexicans convicted of murder in state courts who had been denied access to Mexican consular officials, in violation of American treaty obligations.
In contrast to its mishandling of detainees, the Bush administration worked conscientiously in its second term to comply with these rulings, even taking the step of ordering the states to revisit the Mexican cases, a move the Supreme Court invalidated last year. The Obama administration should support federal legislation that would enable the president to ensure that the United States lives up to its international obligations.
The international court’s decisions arise from the arrest, conviction and death sentences of more than 50 Mexicans. As a party to the 1963 Vienna Convention on Consular Relations, the United States is required to inform foreigners arrested here of their right to have a consular official from their country notified of their arrest.
Unfortunately, it has proven all but impossible to guarantee that state law enforcement officials observe this obligation in all cases, and nearly all of the Mexicans at issue were never told of their Vienna Convention rights.
In 2003, Mexico filed suit against the United States in The Hague, demanding that the Mexicans’ convictions be reviewed to determine whether the absence of consular notice had prejudiced the defendants’ ability to hire qualified counsel. The international court sided with Mexico, ruling that the United States had violated the Vienna Convention, and ordered us to reconsider all of the convictions and death sentences.
This decision presented a serious legal and diplomatic challenge for President George W. Bush early in his second term. But Texas strongly opposed acquiescing to an international court, especially in the prominent case of José Medellín, who had been convicted of the rape and murder of two teenage girls.
Secretary of State Condoleezza Rice argued, however, that the United States was legally obligated by the United Nations Charter to follow the international court’s decisions, and she emphasized the importance of complying to ensure reciprocal Vienna Convention protections for Americans arrested overseas. (The United States, for example, took Iran to the international court for violating the Vienna Convention by denying American hostages consular access during the 1979 embassy takeover.) President Bush ultimately issued an order in February 2005 directing state courts to follow the international court’s decision.
But Texas challenged the president’s order and, in March 2008, the Supreme Court sided with Texas. Chief Justice John Roberts acknowledged America’s obligation to comply with the international court’s decisions, but held that the president lacked inherent constitutional authority to supersede state criminal law rules limiting appeals and that Congress had never enacted legislation authorizing him to do so.
President Bush’s advisers concluded that, in an election year, Congress could not be persuaded to pass legislation extending additional rights to convicted murderers. So instead Secretary Rice and Attorney General Michael Mukasey wrote to Gov. Rick Perry of Texas reminding him of the United States’ treaty obligations. Although Governor Perry agreed to support limited review in certain cases, Texas nevertheless proceeded with the execution of José Medellín.
In the meantime, after the Medellín decision, Mexico sought a new ruling from the International Court of Justice that the United States had misinterpreted the court’s earlier judgment. In January — in a case I argued — the international court concluded that although the United States clearly accepted its obligation to comply with the decision, our nation had violated international law by allowing Mr. Medellín to be executed. The court reaffirmed that the remaining cases must be reviewed.
President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.
The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.
From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.
John B. Bellinger III, a lawyer, was the
legal adviser to the State Department from April 2005 to January 2009.
Protecting them protects us
Why you should care
about what happens to 51 Mexican nationals on death row.
August 04, 2008|
Los Angeles Times
Jeffrey Davidow
Jeffrey Davidow,
president of the Institute of the Americas in La Jolla, served as U.S.
ambassador to Zambia, Venezuela and Mexico in the Reagan, Clinton and both Bush
administrations.
In one of his
earliest comedies, Woody Allen had a stereotypical pompous U.S. ambassador
bellow to an equally stereotypical group of thuggish Eastern European cops that
no American could be dragged off and shot without his personal approval.
The ambassador's shout was an understandable, if tortured, explication of
something we all know and value: Our diplomatic and consular officials overseas
have a primordial responsibility to protect the rights and interests of our
citizens traveling and working abroad. The right of people traveling abroad to
have immediate assistance from their consulates is so basic that it is
enshrined in the Vienna Convention on Consular Relations, a global treaty endorsed
by the United States and about 170 other nations.
Because thousands of U.S. citizens are jailed abroad every year (sometimes
for no good reason), anything that diminishes the power of American consuls to
assist them in their time of need is cause for concern. Yet current
developments in our own nation are threatening the power of American consuls.
At issue are the cases of 51 Mexican nationals who were arrested, tried and
sentenced to death in the United States but were denied consular notification
and access. Mexico sought a remedy for these U.S. breaches of the Vienna
Convention at the International Court of Justice, the principal judicial arm of
the United Nations and the international body that the U.S. and other Vienna
Convention signatories had agreed would resolve such disputes. The United
States was the strongest proponent of the court at the time of the formation of
the United Nations and was the first nation to invoke its jurisdiction related
to the Vienna Convention, in a case filed against Iran during the 1980 hostage
crisis.
The court heard the case filed by Mexico and, after hearings that involved
the full participation of the United States, directed a modest remedy
consistent with our nation's commitment to the rule of law: a judicial
proceeding in each of the cases to determine whether each defendant's case was
prejudiced by not having consular access. In 2004, the Bush administration
attempted to enforce the court judgment by directing states to provide that
judicial review.
The U.S. Supreme Court, however, in the Medellin vs. Texas decision issued
in March, held that although the United States -- and its individual states --
are indeed bound by international law to comply with the International Court of
Justice decision, neither that decision nor President Bush's directive is
directly enforceable in domestic courts without action on the part of Congress.
On July 14, legislation was introduced in the House calling for the
implementation of the ICJ's judgment. On July 16, the U.N. court again issued
an order directing the United States to prevent the imminent execution of five
of the Mexican nationals on death row in Texas.
Thus far, Texas has refused to stay its hand until Congress can act, and
instead is proceeding toward the execution Tuesday of Jose Medellin, one of the
Mexican nationals.
So we now find ourselves on the brink of an irrevocable violation of the
most important treaty governing consular assistance for our citizens detained
in other countries. A failure to comply with this most basic of treaty
commitments would significantly impair the ability of our diplomats and leaders
to protect the interests -- individual and collective -- of Americans abroad.
Were the tables turned -- American citizens arrested abroad and denied consular
access, with an ICJ judgment requiring review of those cases for prejudice, and
another nation refusing to comply -- our leaders would rightly demand that
compliance be forthcoming.
I am not personally opposed to the death penalty. But this case is not about
the United States' or Texas' rights to implement criminal laws. This case is
about our unequivocal treaty obligation to comply with an International Court
of Justice judgment and the Vienna Convention, which has allowed diplomats such
as myself to save hundreds if not thousands of American lives.
The proposed legislation in Congress is a laudable step, but Congress should
move swiftly on it to ensure this country's commitment to its treaty
obligations. Meantime, Texas should not move forward with its planned
executions while the political branches of the U.S. work to ensure compliance
with the ICJ's judgment. A failure to honor our obligation here may undercut
our ability to protect our own citizens overseas.
Arturo
Sarukhan: Why enforcing the Vienna Convention makes sense
Dallas Morning News op-ed
Wednesday, May 7, 2008
Arturo Sarukhan
Mexico and the United States have long relied on the golden rule of reciprocal treaty compliance as the basis for harmonious international relations. From trade and water to taxation and extraditions, virtually every issue of mutual concern is regulated by treaties.
When disputes have arisen, both nations have turned to binding arbitration or other means of amicable resolution, secure in the knowledge that each will honor its pledge to comply fully with the resulting decision. Over the last two centuries, Mexico and the United States have settled hundreds of disagreements this way.
In Medellín v. Texas, the U.S. Supreme Court recently ruled that a binding decision of the International Court of Justice upholding the consular rights of Mexico and its citizens cannot be invoked in U.S. courts.
Furthermore, the Supreme Court held that the president does not possess the constitutional authority to enforce the court of justice judgment and that only Congress has the power through enactment of legislation to implement binding international adjudication.
At issue in this case was the refusal of the Texas courts to grant a new hearing to José Medellín, a Mexican citizen who everyone concedes was arrested, tried and sentenced without being advised by Texan authorities of his right to contact his consulate for assistance.
The appellate courts refused to consider this clear breach of the Vienna Convention on Consular Relations because Mr. Medellín had failed to raise the treaty violation early enough in his legal proceedings. Any recourse to a remedy was therefore barred on procedural grounds, even though it was the state's own failure to advise him of those rights.
The case Mexico brought to the attention of the International Court of Justice certainly did not call into question the heinous nature of the crimes that Mr. Medellín was convicted of. Mexico's goal was simply to ensure due process and due compliance with international law.
The vital significance of prompt consular help when detained or confronted by a foreign legal system should be immediately apparent to any person who has traveled abroad. Invoking that enforcement, Mexico sought a binding court of justice determination of the remedies necessary for the Vienna Convention violations in cases such as that of Mr. Medellín.
The resulting decision was a model of judicial prudence and restraint. Despite finding glaring Vienna Convention violations in all but one of the 52 cases that it reviewed, it did not call for new trials or sentencing hearings. Instead, it simply required the United States to provide review and reconsideration of the treaty breach in each case, so as to determine if the violations were harmful to any of the defendants. To that end, Mexico sought and obtained the support of 60 nations in Europe and Latin America in urging the Supreme Court to order the judicial remedy required by the International Court of Justice.
While Mexico acknowledges President Bush's efforts to ensure that the U.S. "will discharge its international obligations" under the ruling, my government is deeply disappointed with the Supreme Court's decision. Indeed, the ruling has produced the destabilizing paradox of a decision that is binding under international law but that, under the terms of the Supreme Court's opinion, is unenforceable without congressional action. This legal vacuum has potentially global consequences that can only be seen as deeply troubling.
Great nations lead by their deeds, and not by their words alone. Just as this nation has consistently invoked international obligations to protect U.S. citizens abroad, it should abide by that same rule of law when the treaty rights of Mexican citizens in the United States are at stake.
Arturo Sarukhan is Mexican ambassador to the United States.
Responses to the Supreme Court decision in Medellín v. Texas
States should not
be allowed to violate international law
Yet,
states can ignore the law. The U.S. Supreme Court ruled last week that states
don't have to abide by treaties signed by the federal government.
By the Walla Walla
Union-Bulletin Editorial Board
The U.S. Supreme Court issued a puzzling ruling last week in which it
essentially said that individual states have the right to violate international
treaties even though the federal government has agreed to the terms of those
treaties.
The high court's six-justice majority was so focused on the question of states'
rights in a death penalty case that it missed the important issue dealing with
international treaties.
President Bush gets it. And that's why he took a stand in favor of
international law because he knows it is in the best interests of the nation.
Bush, who oversaw 152 executions as governor of Texas, clearly doesn't
have a problem with the death penalty. Yet, Bush took a stand against the execution
of a Mexican citizen on Texas' death row for rape and murder.
The convicted killer, Jose Ernesto Medellin, was prevented by police
from consulting with Mexican diplomats as is provided by international treaty.
The international court ruled in 2004 that the convictions of Medellin
and 50 other Mexicans on death row across the United States violated the 1963
Vienna Convention.
The president didn't necessarily agree with the international court, but
said states must abide by the world court's ruling because the U.S. government
has agreed to accept international law. Exactly.
If a U.S. citizen were being held in a foreign country
awaiting execution the American people would demand the prisoner be allowed to
consult his government as is mandated by treaty. This nation would howl if a
state (or provincial) government within that country insisted that it did not
have to follow international law.
How then can we expect less of our own government?
The high court, in its 6-3 ruling, looked only at the issue of states'
rights. Chief Justice John Roberts said international court decisions cannot be
forced on states. The president may not "establish binding rules of
decision that pre-empt contrary state law," Roberts said.
Perhaps it is time for Congress to step in to address this serious issue
and establish that states must adhere to international treaties.
The Medellin case isn't about punishing a convicted killer who has
confessed to the crimes, but about respecting international law so that when
Americans travel abroad they are accorded rights granted by treaty if they are
accused of a crime.
Treaty rights
Protect Americans by enforcing pact
Watertown (NY) Daily Times
THURSDAY, APRIL 3, 2008
A recent Supreme Court ruling could put in jeopardy the rights and lives of Americans detained or arrested in foreign countries.
A 6-3 high court said President Bush had no power to force his home state of Texas to abide by the obligations of the Vienna Convention, a lawful treaty under the U.S. Constitution. President Bush intervened in the case of Jose Ernesto Medellin, who is on death row for the rape and murder of two teenage girls.
When he was arrested, the Mexican national was not informed that he was entitled to contact the Mexican consulate as required by the Vienna Convention on Consular Relations ratified by the United States and 165 other countries in 1963.
Medellin did not raise the treaty rights until after he was sentenced, but Mexico took the issue to the International Court of Justice in The Hague. After it ruled that Texas had violated the treaty, President Bush ordered Texas to reopen Medellin's case. The order extended to 50 other Mexican nationals facing the death penalty in Texas and eight other states who were not given their right to consular access.
President Bush took the right approach. If the states can disregard treaty obligations, other nations may take the same liberties when Americans are arrested in their countries.
The high court, though, disagreed with the president.
Although treaties become part of American law, the Supreme Court rejected Mr.
Bush's order, saying the Vienna Convention was not binding federal law since
Congress had not passed a law to enforce it. Congress has to close that
loophole quickly and enact legislation implementing the treaty requirements —
if not in fairness to those on death row here then out of concern for all
Americans traveling overseas.
Web Posted: 04/05/2008 04:02 PM CDT
San Antonio Express-News
Editorial: Review appropriate in Jose Medellin case
The facts surrounding the murder conviction of Jose Ernesto Medellin are not in dispute. In 1993, he provided a written confession about his participation in the brutal rape and murder of two teenage girls in Houston.
A year later, a jury of his peers found him guilty of murder in the course of a sexual assault and sentenced him to death.
Medellin was born in Mexico, though he lived most of his
life in the United States. Under the Vienna Convention on Consular Relations,
to which the United States is a signatory, that means Texas authorities should
have notified a Mexican consular post when he was arrested.
They didn't. And Medellin and his court-appointed attorneys never raised the issue during his trial, sentencing or initial appeal.
Only after the Texas Court of Criminal Appeals affirmed Medellin's conviction did he began a series of appeals in federal court on the basis of the Vienna Convention. Those appeals involved the Mexican government, the International Court of Justice in The Hague and complex issues of presidential powers and states rights.
In 2005, President Bush ordered the Texas Court of Criminal Appeals to review the Medellin case in accordance with an ICJ ruling. The Texas court refused on constitutional grounds, creating a case that pitted a pro-death penalty president against the death penalty sentence of the state he once governed.
The Supreme Court ruled last month in a 6-3 decision that Bush had overstepped his executive authority and that the treaty obligations alone could not dictate state legal proceedings. Congress must also give those treaty obligations the force of law.
That makes good sense. But so does honoring a treaty that protects the millions of Americans — more than anyone else — who travel, conduct business and live abroad.
In a concurring opinion, Justice John Paul Stevens noted
that while the Texas court should not be compelled to give Medellin another
hearing, there's ample reason for it to do so voluntarily.
"Texas' duty in this respect is all the greater," he wrote, "since it was Texas that — by failing to provide consular notice in accordance with the Vienna Convention — ensnared the United States in the current controversy."
There's no reason to believe that a review of the case would arrive at any different conclusion regarding Medellin's heinous crime or the appropriate punishment. As an Express-News editorial noted last year, Jennifer Ertman and Elizabeth Pena, the two girls Medellin raped and murdered, deserve justice.
There's a way, however, for justice to be served under Texas
law that is consonant with the supreme law of the land — the Constitution — and
U.S. treaty obligations.
Sunday, April 6, 2008
Toledo Blade
A
treaty that isn't
IT ISN'T often that President Bush supports the right of a convicted murderer
to have a new hearing or that the U.S. Supreme Court isn't sympathetic to Mr.
Bush's expansive understanding of his own powers. But the President was
rebuffed 6-3 by the justices in a decision that harms the international reputation
of the United States.
Concerning the case of Medellin vs. Texas, Mr. Bush
certainly does not condone or defend the crimes that put Jose Ernesto Medellin,
an accused gang member, on death row in Texas. The administration's involvement
was in support of a greater principle about international treaty obligations.
Medellin, a Mexican national, was convicted of the rape and
brutal murders of two Houston teenagers, 16 and 14 years old, in 1993. Since he
provided a detailed confession after the murders, there isn't much doubt about
his guilt. But authorities failed to inform him of his right to notify Mexican
consular officials of his detention, a right the United States agreed to under
the Vienna Convention it ratified in 1969.
Indeed, the International Court of Justice, also known as
the World Court, ruled in 2004 that Medellin and 50 other Mexican prisoners be
granted new hearings. Mr. Bush signed a memorandum declaring that states,
including Texas, should do so in deference to the treaty obligation.
But the court majority held that the President can decree no
such thing. As the official summary of the opinions says, "While a treaty
may constitute an international commitment, it is not binding in domestic law
unless Congress has enacted statutes implementing it or the treaty itself
conveys an intention that it be 'self-executing.'" This one did not, the
court said.
At least this counter-intuitive finding acknowledged the
common-sensical reality of Mr. Bush's position: "The President seeks to
vindicate plainly compelling interests in ensuring the reciprocal observance of
the Vienna Convention, protecting relations with foreign governments, and
demonstrating commitment to the role of international law. But those interests
do not allow the court to set aside first principles."
Justice Stephen Breyer, in a dissent joined by Justice David
Souter and Justice Ruth Bader Ginsburg, started by quoting a first principle
that would seem to be even more to the point: "The Constitution's
Supremacy Clause provides that "all Treaties … which shall be made … under
the authority of the United States, shall be the supreme law of the land; and
the judges in every state shall be bound thereby."
Apparently not.
And because they are not, America's word isn't what it was in the world community. While there is some comfort in the court reminding the President that his power isn't absolute, it is a bad decision for those plainly compelling interests of the nation.
Earlier editorials
Dallas Morning News editorial, February 11, 2003
Let's Keep Our Word: Treaty demands consular help for suspects
Forty years ago, the United States promised to inform foreign criminal suspects that they could contact their countries' diplomats for help. In return, other countries agreed to do likewise for U.S. criminal suspects.
Since then, however, the United States has sometimes broken its promise, which is enshrined in the Vienna Convention on Consular Relations. In fact, Mexico accuses it of having done so in the cases of 51 Mexicans awaiting execution in Texas and nine other states. Last week, the International Court of Justice partially sided with Mexico, urging the United States to spare three Mexicans until the court determines whether they were denied their right to contact Mexican diplomats. Two of the three Mexicans are on death row in Texas, one in Oklahoma.
The unanimous opinion of the court's 15 judges (one of whom is a U.S. citizen) puts Texas squarely in the international spotlight. Texas can obey the injunction, or it can ignore it. Texas hasn't yet decided, but the early signs aren't promising.
Gov. Rick Perry's press secretary, Kathy Walt, makes much of the court's inability to enforce its rulings and of the federal government's historic reluctance to compel the states to obey.
Texas should honor the injunction. The honor and the safety of its own people are at stake. If it ignores the injunction and executes the Mexicans before the international court can fully review Mexico's lawsuit, Texas would stand in violation of the very sort of international treaty it expects other countries on other issues (think: water) to abide. Furthermore, it would endanger U.S. citizens who are accused of breaking other countries' laws, since those countries may be less than eager to respect the rights of people whose country has denied the rights of their citizens. Indeed, it would endanger U.S. citizens precisely when they are most vulnerable - during the war against terrorism and on the eve of a possible war against Iraq.
Texas should seize the opportunity to demonstrate that it keeps its promises and respects the rule of law. Doing otherwise would do more than tarnish its reputation; it would stain its very soul.
Austin American-Statesman Editorial Board, February 7, 2003
World Court complaint should at least be heard
At a time when the United States is calling on other nations to enforce U.N. resolutions against Iraq, it ill-behooves the state of Texas to ignore an order from the World Court to postpone the execution of two Texas prison inmates.
The World Court -- formally known as the International Court of Justice -- ruled Wednesday that the United States must delay execution of three Mexican citizens: Cesar Fierro, 46, and Roberto Ramos, 48, in Texas, and Osvaldo Torres Aguilera in Oklahoma.
The court wants to give the United Nations more time to investigate whether the three men were deprived of their right to get legal help from the Mexican government.
At the World Court, Mexico has filed a complaint that says 51 Mexican citizens on U.S. death rows should get new trials because-- in violation of an international treaty signed by both countries in 1963 -- they had not been told when they were arrested that they had a right to meet with Mexican consular officials. The court limited its ruling to the three inmates it thought closest to being executed.
The World Court has no power to compel the federal government or Texas to delay the executions. If we refuse the order, Mexico can take the issue to the U.N. Security Council, but it, too, appears to have no real power to stop the executions.
Gov. Rick Perry sees no reason to postpone the executions because he believes federal and state courts provide "adequate safeguards" for foreign prisoners wanting to meet with their consular officials, a gubernatorial spokesman, Gene Acuña, said Thursday.
Texas and other states in the past have rejected foreign pleas to put off an execution or to commute a death sentence to life in prison. Just last August, Mexican President Vicente Fox canceled a visit to Texas after the state refused to delay the execution of another Mexican national, 33-year-old Javier Suarez Medina.
But just because we can ignore Mexico's complaint doesn't mean we should. What the U.S. Declaration of Independence calls "a decent respect to the opinions of mankind" should prompt us to honor the World Court's order while Mexico's complaint is heard.
We should also consider the effect of ignoring the World Court's order. If we can dismiss complaints that Mexican citizens were not allowed to meet with their consular officials, what ground will we have to stand on when the same happens to American citizens in other countries arrested and imprisoned -- even on trumped-up charges?
We've executed Mexican nationals convicted of murder despite Mexico's requests. Now that we've proved how tough we are, can we not afford to show respect for a neighbor's complaints -- and for the rule of law -- by delaying two executions?
Dallas Morning News editorial, February 1, 2003
Follow the Treaty: Mexico is right to hold U.S. to obligations
It may seem unpatriotic of us to side with Mexico in its suit against the United States in the International Court of Justice. It's not. Mexico is right, and Americans will be better off if it prevails.
Mexico accuses the United States of violating the rights of the 51 Mexicans on death row in the United States, including the 16 in Texas. The suit is almost certainly justified in all, or almost all, of its particulars. The United States routinely fails to meet its treaty commitment to tell foreigners whom it has accused of crimes of their right to seek help from their countries' diplomats.
The issue exploded into public view last year when Texas executed a Mexican on the eve of Mexican President Vicente Fox's visit to the state. Disappointed by Gov. Rick Perry's refusal to stop the execution, Mr. Fox abruptly canceled the visit, which was to have included stops in Dallas and at President Bush's estate in Crawford. No one doubted that Javier Suarez Medina killed a Dallas police officer. However, Mr. Fox correctly argued that Texas violated its commitment under the 1963 Vienna Convention on Consular Relations to inform Mr. Suarez of his right to seek help from Mexican diplomats.
The breaking of solemn treaties is not insignificant. It can tarnish a country's international reputation. More important, it can invite retaliation. When the United States denies foreigners their rights, its ability to protect Americans' rights in foreign countries is diminished.
Part of the problem is that the United States is a federation. By and large, individual states, not the central government, adjudicate criminal cases. The federal courts have hesitated to intervene where states have mistreated foreigners. But that's no excuse. Congress should strengthen the law.
No one put a gun to the United States' head and forced it to sign and to ratify the treaty. The United States entered into it freely. Either it should respect it or get out - and rue how foreign countries treat Americans whom they accuse of breaking their laws.
Toronto Globe and Mail editorial, February 6, 2003
Executing foreigners
The International Court of Justice delivered a strong message to the United States yesterday about executing foreign nationals without respecting the protocols of international law. State justice officials tend to see such criticism as meddling. But they ignore this one at their peril.
Fifty-four Mexican nationals are on death row in the United States, and Mexico has complained that not a single one received notification of the right to prompt access to consular officials. The International Court of Justice, though not making a decisive ruling on the facts, ordered a halt to the three executions that are pending in the next few weeks or months, while it gathers more information.
Mexico has also expressed concern about confessions made under duress; these too deserve an airing in light of former Illinois governor George Ryan's decision to set four death-row prisoners free after finding their confessions had been extracted under police torture.
Canadians may find the scenario somewhat familiar. In 1999, an Albertan, Stan Faulder, was to be executed in Texas for murdering an elderly woman during a robbery. The Canadian government, Amnesty International and even U.S. secretary of state Madeleine Albright protested that Texas had failed to tell Mr. Faulder of his rights to consular assistance, either when he was arrested or at any time in the next 15 years. George W. Bush, who was then governor, refused all requests for clemency.
Germany will find the situation familiar, too. It won a ruling from the ICJ in 1999 ordering the U.S. not to proceed with the execution of a German citizen. The execution went ahead anyway.
Under the 1963 Vienna Convention on Consular Relations, which the U.S. signed in 1969, and which has at least 165 signatory countries, local authorities must notify all detained foreigners of their right to let their consulate know of their detention. This is no mere technicality; it may mean the difference between acquiring a competent legal defender and picking one from the Yellow Pages. Hundreds of U.S. citizens are detained around the globe, and millions travel abroad each year. For their sake, if nothing else, the U.S. should heed the international court's order.
Surely the idea of U.S. exceptionalism, of a shining "city on a hill," should not include a defence of capital punishment, against international opinion and international law. That would be an awfully sad corruption of the idea, and not one likely to make the U.S. any friends.
Detroit Free Press editorial, November 21, 2000
Consular Rights
Executions put due process for U.S. citizens at risk
Most Americans would be justifiably appalled if a U.S. citizen in a foreign country were charged, convicted and executed for a capital crime without being advised of a right to contact the U.S. Embassy for legal help. Such due process is guaranteed under the international Vienna Convention; the United States demands it be accorded to U.S. citizens detained abroad.
Yet, in a disturbing number of cases, American states are executing foreign nationals without advising them of these rights. This is occurring over the protests of their countries, human-rights organizations and even the U.S. State Department. Such practices don't bode well for Americans detained abroad.
Germany is suing the United States in the World Court, seeking reparations for the executions in Arizona last year of two German brothers who were not advised of their international rights. Arizona officials acknowledged this many years after the pair's incarceration. Several nations joined Mexico in loud protest over last week's execution in Texas of a Mexican citizen who also was never advised of a right to contact his embassy.
Eighty-seven foreign nationals from 28 countries are on death rows in the United States. In the last 2 1/2 years, six foreign citizens -- none of them advised of consular rights -- have been executed, according to the Death Penalty Information Center.
Notification probably would not have altered any of the execution decisions. But as Secretary of State Madeleine Albright has noted, the ability of the United States to provide consular assistance to Americans in other countries is heavily dependent on the extent to which foreign governments honor their treaty obligations about consular notification.
There should be no double standard here.
Dallas Morning News editorial, November 9, 2000
Death penalty: The Texas system deserves criticism
With America so caught up in the drama of its elections, few are witnessing the drama unfolding in Huntsville, where death row inmate Miguel Flores is preparing for his execution today.
No one questions Mr. Flores' guilt. In June 1989, he abducted college student Angela Tyson as she was closing up the video store where she worked in a small Panhandle town, then raped and stabbed her to death. The crime was brutal. One can't help but grieve with families that have been victimized by horrible crimes like this.
However, some are questioning the legality of Texas seeking punishment through execution; Mr. Flores is a Mexican citizen.
The Mexican government has filed a protest with Gov. George W. Bush and the State Department. Mexican consulate officials say Texas authorities did not inform Mr. Flores of his right to contact a representative of Mexico as required under international law.
Last year, a Canadian citizen was executed in Texas despite not having been told after his arrest that he could seek help from Canadian authorities, who subsequently protested. Neither Canada nor Mexico administers a death sentence.
The United States is a pariah in the international community for its use of the death penalty. Texas has rightly been criticized for its frequent imposition of death sentences and the inadequate provision of counsel for defendants. The president of the European Union met Wednesday with the chairman of the Texas Board of Pardon and Paroles to express concern about the imposition of the death sentence on Mr. Flores in violation of international agreements.
The Texas board denied Mr. Flores' petition for a reprieve and/or commutation on Wednesday. Now, Gov. Bush should grant a 30-day reprieve so international concerns can be further reviewed.
Americans often fear traveling to Third World countries where they may be subject to the corruption, whims or simple vagaries of their laws. But indigent defendants, not just foreigners, are often subject to some of those same vagaries when they are arrested in Texas.
The Texas death penalty system is seriously flawed. These cases of foreign nationals illustrate one of the flaws. A larger problem is the adequacy of indigent defense in Texas, with the results of inadequate defense proving especially troublesome in capital cases.
The appeals process for inadequate defense is sleeping itself. The Texas Court of Criminal Appeals has denied appeals in all the executions since 1976 and has denied new trials or new testing of important DNA evidence in cases. Recently, and most incredulously, the 5th U.S. Circuit Court of Appeals ruled that sleeping counsel is not inadequate counsel as long as counsel didn't sleep through important parts of a trial. That's like telling an airplane co-pilot to wake up just for the landing.
The legality of the Texas process is questionable. The morality of it is even harder to justify when next week three more inmates, including a mentally retarded man, are scheduled for death. We recognize that the majority of Texans support the death penalty, but they should want it fairly administered.
BOSTON GLOBE- WEDNESDAY, APRIL 22, 1998
US Must Accept Its Foreign Obligations
Two recent intrusions by world organizations into America's domestic affairs
raise serious questions regarding United States international obligations.
A report authorized by the United Nations Human
Rights Commission (UNHRC) has accused the US of unfair, arbitrary, and racist
use of the death penalty. The report - prepared by a Senegalese, Bacre Waly
Ndiaye - was preliminary to a vote of the commission calling for a worldwide
moratorium on the death penalty; the US opposed the moratorium, along with
China, Congo, and the Sudan.
On April 14, Paraguayan citizen Angel Francisco Breard, was executed in
Virginia despite interventions by the International Court of Justice. The
Court's appeal pointed out that the Commonwealth of Virginia had not, as
international law requires, notified Paraguayan consular authorities of Breard's
arrest. The requirement notification, codified in the Vienna Convention on
Consular Relations, is a universally recognized obligation.
Americans, perhaps because of their colonial heritage, have never been friendly
to external interventions in their affairs. The problem is exacerbated today by
negative attitudes toward the UN. Sen. Jesse Helms, Republican chairman of the
Senate Foreign Relations Committee, attacked the UNHRC report as a "UN
charade" and urged the State Department to refuse to cooperate with any
investigation. His views are probably shared by many others in the Congress.
Congressional resentment of the UN is at a peak. The debate over whether the US
should pay back-dues to the UN, combined with criticism of Secretary General
Kofi Annan's efforts in Baghdad, have demonstrated the deep antagonism toward
the UN in the US legislature.
Many in the US speak of the UN as if it were another sovereign body threatening
America. It is not. It is an international body to which the US belongs and in
which the US has a strong measure of control through a veto in the Security
Council. Membership in the international community also carries obligations.
The problem would not be as serious if the question related solely to
intervention by multinational organizations in US affairs. The US itself
intervenes in the affairs of other nations and looks to other nations to abide
by international law where US citizens are concerned. The State Department's
annual human rights reports delve deeply into the internal affairs of other
nations. Their sovereignty has been severely challenged by such reports.
Many Americans take the view that US society is above reproach and therefore
qualified to press others to change their ways. Further, some of the resentment
of reports such as that by Mr. Ndiaye arises from a belief that the practices
of many of the nations on the Commission are far more to be condemned than
anything in the US: "They have no business telling us what to do."
Yet the "pot calling the kettle black" response only arouses more
resentment.
But a more fundamental issue is present in both incidents - the access of US
diplomats to officials in other countries. What is noticeable in the press
report of Ndiaye's mission is that access was refused to him by senior
officials at both the federal and state level. At a time when the US, in
pursuing its goals of democracy and market forces in the global marketplace, is
seeking access for its own representatives at significant levels in other
nations, it is not helpful to the achievement of broader US objectives to
refuse to see someone operating under the UN flag. Such refusals aren't
forgotten when US diplomats seek entree to foreign office officials in other
nations. Whenever US citizens are arrested abroad, US officials demand access
under the Vienna Convention, the provisions of which were so lightly dismissed
in the Breard case by Virginia Gov. James S. Gilmore III.
International obligations are a two-way street. If the US is not prepared to
have others look at its society, its basis for looking at others is seriously
weakened. If the US will not accept its obligations to the citizens of other
lands, its own citizens will be less safe abroad. Washington cannot justify
making foreign relations a one-way street.
* David D. Newsom, former undersecretary of state, is Cumming Memorial
Professor of International Affairs at the University of Virginia.
New York Times editorial, December 9, 1998
Texas and International Law
The execution of Joseph Stanley Faulder, if allowed to go forward as scheduled tomorrow, would seriously damage the United States' ability to protect American citizens arrested in foreign countries. Mr. Faulder, a Canadian citizen, was convicted of murder in Texas and has spent the last two decades on death row. But Texas did not notify him of his right to seek help from the Canadian consulate after his arrest, even though Texas officials knew that Mr. Faulder was Canadian. That failure violated the Vienna Convention on Consular Relations, ratified by the Senate in 1969, which requires that a person arrested in a foreign country be allowed to seek assistance from a consulate post of his own country.
The treaty affords a crucial level of protection for United States citizens abroad. But the failure of Texas officials to comply with the requirement sends a message to foreign governments that they need not take this obligation seriously either. Secretary of State Madeleine Albright has expressed concern about treaty violations in the past, but rarely so strongly as in the case of Mr. Faulder.
After extensive investigation she has asked Gov. George Bush for a 30-day delay of the execution so that the Texas Board of Pardons and Paroles can consider the clemency request by Mr. Faulder and the Canadian Government, which abolished the death penalty in the 1970's. The case is disturbing because the Canadian Consulate General in Dallas routinely sought information about Canadians in Texas prisons. Yet Texas officials did not include Mr. Faulder on prisoner lists given to Canada.
Consular intervention could have helped Mr. Faulder obtain competent legal
assistance. His court-appointed lawyer failed to present mitigating evidence at
his trial, a move that courts later found to be deficient but not prejudicial.
That does not excuse Texas's failure to carry out American treaty obligations.
For the sake of fairness and insuring respect for a principle that benefits
Americans, Governor Bush should acknowledge the error and persuade the Texas
pardon board to commute Mr. Faulder's sentence to life in prison.
Chicago Tribune editorial, December 9, 1998
A Golden Rule for Foreign Defendants
Joseph Stanley Faulder, a Canadian citizen scheduled to be executed in Texas Thursday, is not a particularly endearing symbol for any cause. He was found guilty and sentenced to die some 20 years ago for the gruesome murder of an elderly widow. The essential facts of the case are generally undisputed.
So far, appeals have delayed Faulder's date with the executioner eight times. His latest appeal, however, has become an international cause that may affect not just Faulder's fate but those of some 12,500 Americans awaiting trials or serving sentences in foreign jails.
The nugget of the latest motion is that, when he was arrested, Texas authorities did not give Faulder the chance to contact his government to request legal assistance, as required by international conventions signed by the U.S.
If that sounds like a trifling technicality, imagine yourself being detained by some foreign gendarme and how desperately you would want to contact the nearest U.S. consulate or embassy to help you out and notify your loved ones back home.
As one lawyer described it, Article 36 of the Vienna Convention on Consular Relations is a "diplomatic golden rule" that compels the U.S. to treat foreign nationals here as we would expect American citizens to be treated abroad.
Canadian authorities have mounted an aggressive campaign to have Faulder's sentence commuted; indeed, it's plausible that Faulder would have gotten life in prison rather than a death sentence if the Canadians had been allowed to intervene earlier.
Secretary of State Madeleine Albright also has petitioned Texas Gov. George Bush to grant a 30-day stay of execution while the case is reviewed.
If not for Faulder's sake then for that of America's own citizens, the governor should grant the stay and order another review. And federal officials ought to ensure that immigration and local law enforcement officials comply with the notification protocols.
Amnesty International asserts that of 73 foreign nationals from 24 countries awaiting execution in the U.S., only three were properly notified of their right to solicit help from their governments, and that compliance with the notification requirements is spotty.
Assuming the figures' accuracy, the United States ought to do better than
that. As a global power with far-flung interests, the U.S. every day has
hundreds of thousands of its citizens at actual or potential risk abroad--and
the most to gain from strict universal compliance with the consular
notification convention.
Dallas Morning News Editorial
December 4, 1998
TEXAS SHOULD SPARE JOSEPH STANLEY FAULDER, a convicted murderer who is scheduled to die by lethal injection on Dec. 10 at Huntsville prison. The main reasons for sparing Mr. Faulder have nothing to do with his Canadian citizenship, or Canada's moral aversion to capital punishment or his government's strenuous efforts to halt his execution on grounds that Texas neglected its treaty obligation to tell him of his right to seek help from consular officials.
Rather, the reasons for sparing him have to do with the irregularity of the trial that produced his conviction in 1981, the incompetence of his attorney at sentencing, the porousness of the evidence against him and the strong possibility that a prosecutor may have withheld important evidence.
Texas didn't restore the death penalty to see it applied to people whose guilt is in reasonable doubt or whose lawyers cannot mount an adequate defense or whose convictions were obtained by tawdry or possibly illegal means.
Mr. Faulder probably did murder Inez Phillips. The elderly matriarch of a Gladewater oil family was stabbed and bludgeoned to death in 1975 during a robbery attempt at her home. For that horrendous crime, he should remain in jail for life.
However, the death penalty is inappropriate for someone who was not linked to the crime by fingerprints or other physical evidence, who had no history of violence, whose accusers were offered money to testify against him and whose attorney at sentencing failed to argue why he should not be executed.
Mr. Faulder was first convicted in 1977. The Texas Court of Criminal Appeals threw out the conviction in 1979 on grounds that his confession had been obtained by coercive means.
Mr. Faulder's second trial was not prosecuted by the district attorney but by a private lawyer hired by the victim's family, using a special provision of Texas law.
During that second trial, Mr. Faulder's accomplice, Linda McCann, testified that she had seen him beat and stab Ms. Phillips. Her husband supported her story, saying that she and Mr. Faulder told him how they had planned to rob Ms. Phillips.
However, Mr. Faulder's current lawyer, Sandra Babcock, says that the private prosecutor offered Ms. McCann $15,000 in "relocation" money for her testimony, though the money apparently was never paid, and that Ms. McCann's husband was offered $2,000.
Furthermore, Ms. Babcock has found a memorandum in the file of the now-deceased private prosecutor's quoting Ms. McCann as saying that her husband "participated in all the discussions and planning" of the botched robbery. If the memorandum is true, then two accomplices to murder - the McCanns - may have ganged up on a third in order to secure their own liberty. That, according legal experts, is insufficient under Texas law to obtain a murder conviction without corroborating evidence.
There is one other reason to keep Mr. Faulder behind bars rather than put him to death: When he was 3 years old, he fell out of a moving automobile and suffered a near-fatal brain injury. Doctors who examined him in 1992 said that he has a severe mental condition that was probably caused by the fall.
Texas' failure to inform Mr. Faulder of his right to seek help from consular officials is relevant to the moral and legal imperative to spare Mr. Faulder only insofar as it may have prevented him from getting adequate legal help. By itself, it is, and should remain, insufficient to halt his execution, though the state should make greater efforts to ensure that it fulfills its treaty obligation.
The Texas Board of Paroles and Pardons should commute Mr. Faulder's death sentence to life in prison. If the board has insufficient time to act, Gov. George W. Bush should use his authority to grant Mr. Faulder a 30-day reprieve and urge the board to be lenient.
Agree with it or not, capital punishment is legal in Texas. However, it
should not be applied erratically or cavalierly. There are just too many
irregularities in this case to justify its use. Mr. Faulder should pay for his
crime, but not with his life.
National Post (Toronto, Canada) Opinion
Friday, December 11, 1998
Faulder: The long-term view
by Jonathan Tepperman, an associate editor of Foreign Affairs magazine in New York
If you want to be treated well yourself, you make sure to treat others well. Chances are that if you don't, you'll end up paying for it. Why, then, does the United States find it so hard to grant foreigners the same rights it demands for Americans abroad?
Consider the death-row case of Canadian Joseph Stanley Faulder. It violates international law and a treaty the United States signed in 1969. Worse still, it jeopardizes thousands of Americans imprisoned overseas. Worth noting, the last-minute stay of execution granted to Faulder yesterday by the U.S. Supreme Court pointed to the relevance of international law.
Faulder received the death penalty for the 1975 murder of an elderly widow in Texas. He never denied his guilt. However, when he was originally arrested, Texas officials failed to inform the Canadian consulate or allow Faulder to do the same, as is required by Article 36 of the Vienna Convention on Consular Relations.
Why does this matter? After all, Faulder essentially admitted his guilt. And it is unclear whether Canadian intervention would have made any difference (although Canadian authorities say that, had they known about Faulder's arrest, they would have given Texas evidence of Faulder's childhood brain damage, which might have been sufficient "mitigating" evidence to ward off the death penalty).
It matters because whenever the U.S. breaches a treaty, it invites other countries to do the same. Yet this is one treaty the United States should encourage other countries to obey. It is clearly in the United States' interest to see to it that when other countries arrest Americans, they inform the local U.S. consulate. It might not have made much difference in Faulder's case. But that doesn't mean it wouldn't matter in many others.
Lloyd Axworthy, the foreign affairs minister, and Madeleine Albright, the U.S. secretary of state, wrote Texas Governor George W. Bush, asking him to grant a 30-day reprieve so the Faulder case could be reconsidered. Canada's ambassador to Washington, Raymond Chretien, repeated the request Tuesday. Bush refused, turning his back on Washington and the world and endangering the 12,500 Americans in foreign jails.
This is the second time the United States has breached the Vienna Convention in eight months. The last time, the U.S. Supreme Court let Virginia go ahead and execute Angel Breard, from Paraguay -- despite Virginia's failure to inform the Paraguayan consulate of Breard's arrest, as the convention requires. The court ruled Paraguayan involvement would have made no difference in the case, and that, even if the treaty had been violated, it had no enforcement mechanism and provided no remedy.
This is a dangerous argument for Americans to make, since it suggests there is no reason not to break the treaty. If violations are not penalized, why should any country comply?
In the Breard case, Ms. Albright asked Virginia to reconsider the execution. It refused, as has Texas. This raises another, troubling, prospect: that U.S. states are free to ignore the central government and breach a treaty signed by Washington. Yet this clearly violates the principle of federalism, the U.S. constitution (which gives the central government the power to make and enforce treaties) and common sense. Letting Texas go its own way gives the green light to states and leads to constant treaty violations. The U.S. has a tough enough time forging a single foreign policy. It can hardly handle 50 separate ones.
In Faulder's case, Governor Bush should have granted Ms. Albright's and Mr. Axworthy's requests and not forced the issue. He had nothing to lose by doing so. No one was asking to set Faulder free, but simply to reconsider execution. Sparing him would have been a small price to pay. It would have encouraged other countries to observe the Vienna Convention and have protected the rights of Americans imprisoned abroad. Mr. Bush didn't need to look tough by sending another inmate to die -- his death penalty credentials are already secure. If he really wanted to look presidential, he should have done the truly difficult thing and bucked Texan blood-lust. Chances are, in the long run, other Americans would have lived to thank him for it.
Washington Post Opinion
April 19, 1998; Page C7
JUSTICE FOR ALL
Jim Hoagland
When Virginia's intention to execute a Paraguayan citizen convicted of murder created a collision of the concepts of national interest and local justice last week, U.S. national interest came out second. A distant third was the stumbling, uncertain but now inescapable march toward an international criminal justice system. The police blotter details are simple if tragic for all concerned: Angel Francisco Breard, 32, told an Arlington jury that he was acting under the influence of a satanic curse when he stabbed Ruth Dickie, 39, five times in the neck during a sexual assault in 1992.
There is nothing in the case to suggest that Breard was railroaded or that capital punishment was a cruel and unusual act in the context of the U.S. judicial system. But the fact that Breard was a foreigner who had not been advised by local police of his treaty-based right to consult with a diplomat from his own country at the time of arrest lifted this case off the blotter into an affair of state.
The Breard case in its own way touches on a central question of statecraft at the end of the 20th century: What role will the United States play in fashioning an international criminal justice system that reflects and accompanies the increased interdependence of nations created by the commercial and technological forces of globalization?
The United States praises and actively works to spread that interdependence when it benefits American corporations, investors and workers. But U.S. institutions still resist accepting the kind of mutual limitations on sovereignty that other countries have accepted to enhance interdependence.
This conundrum surfaced with force in the Breard case. In appealing for a delay of the execution, Secretary of State Madeleine Albright pointed out to Virginia Gov. James S. Gilmore III that American citizens arrested abroad would be more vulnerable to having their right to consular access denied if Virginia did not give some sign of recognizing the obligations imposed on all its signatories by the Vienna Convention on Consular Relations.
This was a serious national-interest argument. Breard was arrested in a country where he had good odds of getting a fair trial and due process. There are plenty of countries where access to a U.S. diplomat can be, for an American. the difference between wrongful imprisonment, or worse, and freedom. For your next business trip to the Congo, Belarus or Syria, hope the Breard case has not been getting much coverage there.
Albright sought only a delay in the execution and further discussion of the case. But Gilmore refused her plea 90 minutes after the U.S. Supreme Court brushed off an order from the International Court of Justice in The Hague to stay the execution. It was carried out by lethal injection last Tuesday.
"Several of the issues raised here are of sufficient difficulty to warrant less speedy consideration," Justice Stephen G. Breyer wrote in an understated but important dissent to the majority's unsigned, brusque dismissal of the international court's assertion of standing in an American criminal case. The court was not openly expressing a political judgment about America's role in the world. But culturally the majority ruling reflects a deeply ingrained American attitude of exceptionalism, and a creeping hubris about U.S. superpower in the world.
The same attitude underlies strong opposition at the Pentagon and on Capitol Hill to efforts at the United Nations to create a new International Criminal Court that would be able to subpoena and even try American citizens, along with all other nationalities, in war crimes trials. The Clinton administration, fearful of getting whipsawed domestically by its own generals and Jesse Helms, is moving cautiously in the closed-door discussions of the new court, due to be unveiled this summer at an international conference in Rome. The White House works to avoid being accused of opposing the court by its internationalist supporters as hard as it works to avoid being accused of supporting it by its foes. The result is fog on what Washington really wants.
There is no more important new subject on the international agenda than the necessity of balancing the human need for justice and retribution with the state's interest in stability and reconciliation. This is a paramount topic in places as diverse as South Africa, Rwanda and ex-Yugoslavia today, and a topic in need of clear moral and political leadership from the most powerful nation on the globe.
It is not enough to glory in the spread of the Internet or of open capital markets or of U.S.-dominated military alliances. Those are instruments, not values. America should shape the new judicial system to come, not stand outside it and carp. But the discussion of war crimes and justice is an excellent opportunity for Washington to start seeking changes in the world organization's code of values. How about a U.S. push for U.N. judicial panels of inquiry that would publicly hear war crime allegations and order suspension of U.N. membership, among other penalties, for guilty regimes? Iraq and Saddam Hussein would be prime candidates for that approach now.
America will lack the standing to push for such change as long as it ignores other nations' legitimate concerns about international justice. The handling of Breard's execution was insensitive, and injurious to long-term U.S. interests.
New York Times
October 26, 2000
U.S. Bid to Execute Mexican Draws Fire
WASHINGTON October 26
Reflecting an increasing intervention by foreign governments in American death penalty cases, Mexico has sent a formal protest to the State Department in an effort to prevent the execution of a Mexican citizen scheduled to be put to death in 2 weeks.
The Mexican government has said that the condemned man, Miguel Angel Flores, was deprived of due process because he was not advised of his right to contact the Mexican embassy, in violation of an international treaty.
Mexican officials did not become aware of the charges against Mr. Flores - in the 1989 rape and murder of a 20-year-old video store employee in Hutchinson County, in the Texas panhandle - until nearly 1 year after he had been sentenced to death, the government said in the letter. It was delivered to the State Department on Oct. 19.
The Mexican government said it would have helped him hire a lawyer and would have ensured that members of his family, who do not speak English, had been available to testify on his behalf. Mr. Flores, 20 at the time of the crime, had no criminal record or history of violence, but his court-appointed lawyer, who did not speak Spanish, put on no character witnesses or mitigating evidence.
Mexico wants Mr. Flores's sentence commuted to life in prison and has asked the State Department to intercede with officials in Texas, where Mr. Flores is on death row. He has filed a last-minute appeal with the Supreme Court.
The State Department said it took seriously the failure of states to advise defendants of their notification rights and has asked Texas for an explanation. Texas officials said that whether Mr. Flores, who came to the United States when he was a child, had been properly advised of his consular rights was a matter to be resolved by the courts.
Whatever the outcome, the Flores case illustrates the tensions between the United States and foreign governments, including many allies, created by the small but growing number of foreign citizens on death row. Of particular concern are the cases, like Mr. Flores's, in which foreign inmates have not been advised of their rights to contact the governments through their embassies in the United States. That right is guaranteed under the Vienna Convention and the United States aggressively demands that it be accorded American citizens detained abroad.
Although experts in death penalty law say they have no concrete figures, they say they believe the numbers of such cases may be growing in proportion to the number of foreign citizens on death row. At least 87 foreign citizens - from 28 countries - are on death row, in 16 states. 46 are Mexican citizens, the Mexican government said.
In the last 2 1/2 years, 6 states have executed a foreign citizen, according to the Death Penalty Information Center, a nongovernmental organization in Washington. None of the 6 were advised of their consular rights.
In a landmark case that is to be argued next month, Germany is suing the United States in the World Court, seeking reparations for the execution in Arizona last year of 2 brothers, Karl and Walter LaGrand. They were not advised of their consular rights, Arizona officials acknowledged many years after their incarceration. It is only the 4th time in nearly half a century that an ally has sued the United States in the international court, and if the court rules for Germany, othercountries are likely to sue, diplomats and lawyers said.
The issue is particularly contentious with the Mexican government.
"It is a strain on bilateral relations," Jorge G. Castaneda, foreign policy adviser to Mexico's president- elect, Vicente Fox Quesada, said about the number of Mexicans on death row in the United States. Mr. Fox plans to raise the issue when he meets with the United States president-elect, which is expected to be in late November, Mr. Castaneda said. Mexico, which has the death penalty but has not executed anyone since the 1940's, considers it "inhuman punishment," Mr.Castaneda said, noting that this was the view of nearly all European countries.
Of Washington's policy of apologizing, Mr. Castaneda said: "It's nice, it's polite. But it's not enough."
Even in cases when a Mexican has been advised of the right to consular notification, Mexico will push for a commutation of the convict's sentence to life in prison, said Jesus F. Reyes-Heroles, Mexico's ambassador in Washington.
"It's a moral issue," he said. While Mexico may be the most active, because of the numbers, he said that the problem of foreign nationals being sentenced to death "transcends Mexico."
In the first nine months of this year, the European Union, which has called on the United States to abolish the death penalty, has intervened in 11 death penalty cases, according to the E.U. Web site, which has a section for the death penalty (www.eurunion.org).
2 years ago, Paraguay appealed, unsuccessfully, to the State Department and the governor of Virginia to block the execution of Angel Francisco Breard, who was convicted of murder and attempted rape. The State Department acknowledged that his rights under the Vienna Convention had been violated. "We fully appreciate that the United States must see to it that foreign nationals in the United States receive the same treatment that we expect for our citizens overseas," the department said. "We cannot have a double standard."
Philip T. Reeker, a State Department spokesman, said this week: "Our own consular officers regularly raise this issue with foreign governments when U.S. citizens are arrested abroad, that they have the opportunity to speak with their consular representatives. So it is entirely appropriate to raise this case with us." He added that the department does not believe that the resolution lies in the criminal justice process.
In the Breard case, the agency apologized to Paraguay for the violation of his rights. This is the standard response when a foreign citizen's Vienna Convention rights have been violated, the State Department's legal office wrote last year in a case involving seven Chinese defendants who were not advised of their consular rights when they were arrested off the coast of Bermuda and charged with smuggling.
Paraguay and Mr. Breard appealed to the Supreme Court. Without reaching a decision on the merits, the court said, in an unsigned opinion, that Mr. Breard's lawyers "were likely far better able to explain the United States legal system to him than any consular official would have been."
But advocates for foreign citizens argue that an individual from a defendant's culture, who has lived in the United States as a diplomat, is better equipped to explain legal proceedings.
To illustrate, Mark Warren, who works for Amnesty International on issues of foreign citizens and the death penalty, gave the example of a suspect who is told by the police that he has a right to remain silent. That does not mean much to a person who comes from a country where police routinely torture a suspect who does not confess. But if he hears that from a diplomat who is now in the United States, he might believe it.
Mr. Warren also gave the example of a Mexican suspect in Colorado who told the police he did not need a lawyer but wanted to see the judge; the police wondered why he would conceivably want to see a judge. What the police did not know was that in Mexico, as well as in most European countries, judges supervise criminal investigations.
A judge in the case said the fact that the defendant wanted to speak to a judge was "a clear indication that he did not understand the legal proceedings."
Sandra Babcock, a Minneapolis lawyer who is representing the Mexican government in several cases, said that the involvement of Mexican officials is critical in getting witnesses to court for a defendant, particularly family members. In death penalty cases, prosecutors generally seek to depict the defendant as cold and inhuman. Family members can rebut that.
The families of Mexican defendants often live in villages in Mexico, are poor, do not have travel documents and are frightened by the prospect of coming to the United States, Ms. Babcock said. Mexican officials can overcome those obstacles, she said.
The Mexican government is so concerned about the problem that it has given Ms. Babcock a $300,000 grant to set up a project to provide legal assistance to Mexican citizens on death row. When Mexican officials have become involved, they have achieved notable success in helping Mexicans avoid the death penalty.
Rodolfo Quilantan, the legal attache at the Mexican embassy, said that in the last two years, he had persuaded prosecutors in Ohio, Oregon, Texas and Virginia to not seek the death penalty in murder cases. Altogether, Mexican consular officials have intervened in 261 death penalty cases since December 1994, and in 119 of those cases prosecutors did not proceed with a capital prosecution, according to the Mexican foreign ministry.
The intervention by Mexico's consular officer in Miami was critical in saving Sergio Soto from the death penalty, said his lawyer, Clayton Kaeiser. The prosecution had a strong case against Mr. Soto on charges of kidnapping, robbery and murder, Mr. Kaeiser said, and it was tried in Palm Beach, Fla., "a very conservative jurisdiction where feelings against foreigners are high in such cases."
The Mexican government paid for medical experts who discovered that Mr. Soto suffered from brain damage, and for investigators to go to Mexico, where they located witnesses who testified about Mr. Soto's upbringing, Mr. Kaeiser said. This evidence was critical in the jury sentencing Mr. Soto to life, instead of imposing the death sentence, he said.
The Wall Street Journal Europe
August 30, 2001
Foreigners Awaiting Execution in U.S. Pursue New Trials
Lawyers Say They Weren't Told About Embassy Help
Issue In Question: World Court Jurisdiction
By Paul Hofheinz
Gerardo Valdez is scheduled for execution in Oklahoma this autumn, 11 years after he was convicted of murdering Juan Barron by shooting him twice in the head. But defense lawyers hope to use a recent decision by a court in The Hague to win a new trial for Mr. Valdez, who is a Mexican citizen.
The International Court of Justice, commonly known as the World Court, ruled in June that the U.S. violated the Vienna Convention by allowing the state of Arizona to execute two German brothers in 1999. The violation occurred, the court said, when police there failed to inform the two men that they had the right to contact their embassy for help before their trial. In the process, the court may have created an extension of the famous "Miranda rights" of the accused to obtain counsel. But this time the right is reserved for foreigners.
Now, lawyers for many of the 104 foreigners sitting on death row in the U.S. are seeking new trials, claiming their clients weren't told of their right to seek embassy help. They must show that World Court decisions are enforceable in U.S. courts, including state courts.
The World Court's 15 black-robed judges usually pass their days squabbling over the fine points of obscure treaties and producing decisions of more interest to diplomats than cops on the beat.
But law-enforcement officials in the U.S. are taking this ruling -- and the earlier Vienna Convention on Consular Rights -- very seriously. One U.S. state has already passed a law requiring police to inform foreign suspects of their Vienna Convention rights within two hours of arresting them. Prosecutors in other American states are taking steps to make sure that foreign suspects are informed of their rights early enough to head off subsequent legal challenges.
Death-penalty foe Amnesty International has also joined the debate, calling on U.S. prosecutors to withdraw their objections to new trials when suspects can prove their Vienna Conventions rights have been violated. "No country which claims to uphold the international rule of law can hold itself above that law," Amnesty International said in a recent report calling on Oklahoma to grant Mr. Valdez a new trial.
But the calls are meeting some resistance among American law-enforcement officials. Rich Roberts, a spokesman for America's International Union of Police Associations, argues that adding more criminal rights "could place an unfair burden on officers."
The U.S. ratified the Vienna Convention on Consular Rights in 1969. The treaty sets minimum legal protections for nationals of one country traveling in another, and designated the World Court to resolve disputes between signatories. The World Court's decisions are supposed to be binding, but it's unclear how U.S. Federal and state courts will interpret this ruling.
"In the long run, we may have to get used to the idea that the judgments of domestic courts have to be subject to review by international bodies, if we're going to be part of a global legal order," says Michael Dorf, a Columbia University law professor.
During the past three years, as the World Court mulled the Vienna Convention case, the U.S. State Department has held seminars for policemen and prosecutors in 34 American cities to discuss the rights of foreigners who are arrested. The department has also printed 300,000 pocket cards, telling cops what they should say when they make an arrest.
"As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country's consular representatives here in the United States," the cards say in English. "Do you want us to notify your country's consular officials?"
A few jurisdictions already are giving such counsel. Prompted by a complaint from Thailand, the state of California passed a law in 1999 requiring police to inform foreigners that they had the right to contact their embassies within two hours of arrest. In Cook County, Illinois -- which comprises metropolitan Chicago -- judges now ask criminal suspects being arraigned if they are foreign nationals; if they say yes, they must sign a statement stating they have been informed of their Vienna Convention rights.
But some prosecutors and police worry that judges will dismiss valid cases over what they view as a technicality. They also argue that arresting officers could get slapped with discrimination suits just for having asked a suspect if he is a foreigner. "If we presume that non-English speaking people are not citizens, we'll get charged with racial discrimination by those citizens who don't speak English," says Michael Wims, a state's attorney in Utah.
The World Court decision arises from a suit the German government filed in The Hague against the U.S. in 1999. Germany, which opposes the death penalty, argued that the Vienna Convention rights of German brothers Karl and Walter LaGrand, who were convicted of murdering a bank teller in a 1982 Arizona robbery, had been violated. While the case was being heard, the World Court requested that the U.S. Supreme Court stay the LaGrands' execution. The Supreme Court denied the request, and Arizona went ahead with the execution.
In June, the World Court sided with Germany, saying that U.S. courts should have granted "review and reconsideration" of the brothers' cases, a phrase that seems to imply a right of retrial.
It also sharply rebuked the U.S. for dismissing the court order for a stay, arguing pointedly that U.S. courts, including the Supreme Court, must obey World Court preliminary injunctions in the future.
Last week, lawyers for Mr. Valdez, the Mexican citizen on death row in Oklahoma, cited the World Court decision in asking the Oklahoma Court of Criminal Appeals, the state's highest criminal court, to grant a new trial. Mr. Valdez was convicted in 1990 of murdering a man who propositioned him. According to his own confession, Mr. Valdez shot Mr. Barron twice in the head, slit his throat and burned his body in a backyard barbecue. His attorneys want a new trial, where they say they will introduce new evidence that Mr. Valdez is brain damaged and not mentally competent to be considered guilty of the crime.
Taking a somewhat different tack, Amarjeet Bhachu, a lawyer for Gregory
Madej, a Polish citizen convicted by an Illinois jury in 1992 of raping and
murdering a woman, petitioned the U.S. Supreme Court this summer for a new
trial. Mr. Bhachu argued that under the U.S. Constitution's equal-protection
clause, his Polish client ought to have the same legal rights as a German one.
Lawyers are also considering a Vienna Convention violation defense in a third case involving a British subject. "America needs to take seriously its obligations under U.S. law," says Clive Stafford Smith, a lawyer defending Krishna Maharaj, who is awaiting execution in Florida following a 1987 conviction of double murder. "It's hard to see how an American court can thumb its nose at this ruling."
In all three cases, lawyers must first prove that World Court's decisions are binding in U.S. courts. Although the U.S. constitution says that treaties the U.S. signs are the "supreme law of the land," the U.S. government has on occasion refused to recognize the jurisdiction of the World Court. In 1986, for instance, the Reagan administration ignored a World Court ruling that it had violated international law by mining Nicaragua's harbors as part of an effort to topple the Sandinista-led government.
During the Nicaraguan case, the U.S. refused to recognize the court's jurisdiction and boycotted the hearing. In the LaGrand case, however, the U.S. never questioned the court's jurisdiction, and Clinton administration lawyers took part in hearings.
The Bush Administration, for its part, says it has sought to educate law-enforcement officials about the procedures they must take when arresting foreigners. "We recognize that we have to provide consular notification to foreign nationals in the United States," says a State Department spokeswoman, Carolina Walken. The department, she adds, is "undertaking a close and careful review" of the LaGrand decision.
U.S. Department of State
Office of the Spokesman
Press Statement
Press Statement by James P. Rubin, Spokesman
November 4, 1998
Text of Statement Released in Asuncion, Paraguay
The following is the text of a statement released on behalf of the United
States of America by the U.S. Embassy in Asuncion, Paraguay, on November 3,
1998:
On Tuesday, April 14, 1998, a Paraguayan national was executed by the State of Virginia after exhausting his legal appeals to the courts of the United States. Mr. Breard had not been told that Paraguay's consular officials could be notified of his arrest, and that he could seek their assistance. Such notification was required by the Vienna Convention on Consular Relations and should have been made by competent United States authorities. That failure to notify Mr. Breard was unquestionably a violation of an obligation owed to the Government of Paraguay. The Government of the United States of America fully recognizes the violation of the Vienna Convention in this case, and conveys its apologies to the Government and people of Paraguay.
Recognizing that United States compliance with the requirements of the Vienna Convention must improve, the Government of the United States has undertaken efforts to better educate officials throughout the United States of the consular notification requirements. The United States intends through these efforts to ensure that the consular rights of foreign nationals in the United States are respected, and that Paraguayan and other foreign nationals in the United States are properly notified of their right to request consular assistance if they are arrested or detained. Consular notification is no less important to Paraguayan and other foreign nationals in the United States than to U.S. nationals outside the United States. We fully appreciate that the United States must see to it that foreign nationals in the United States receive the same treatment that we expect for our citizens overseas. We cannot have a double standard.
Finally, we wish to express that the Government of the United States values and appreciates the ties of friendship that join us to the Republic of Paraguay. In this respect, we express our intent to continue to work together to further strengthen the positive dialogue and cooperation between our two nations.