Violations of the Vienna Convention in U.S. Death Penalty Cases
Editorials and Statements
STATEMENT OF SECRETARY OF STATE HILLARY RODHAM CLINTON
Submitted to the U.S. Senate Committee on the Judiciary, July 27, 2011
The State Department has no greater responsibility than the protection of U.S. citizens overseas – particularly when Americans find themselves in the custody of a foreign government, facing an unfamiliar, and at times unfair, legal system. Last year alone, our consular officers conducted over 9,500 consular visits with more than 3,500 Americans who were in the custody of foreign governments. Through the international system of consular assistance – a system that has evolved over centuries and today is reflected in binding U.S. treaties– we are able to reach our citizens in these vulnerable situations and help them receive food and medical assistance, communicate with their families, and provide them with information regarding foreign legal systems and how they can access legal counsel overseas. In return, the United States has committed to permit foreign officials to provide the same assistance to their own citizens who are arrested here.
This protective system of consular assistance depends on mutual compliance with these obligations by the United States and our treaty partners. If the United States fails to honor our legal obligations toward foreign nationals in our custody, the fabric of this protective system is torn, and ultimately it is Americans who are harmed. And although we work strenuously to honor these commitments, unfortunately at times our own compliance has broken down.
The bill that is before you—the Consular Notification Compliance Act—is a carefully crafted piece of legislation which seeks to ensure that the United States keeps these treaty promises. The bill provides practical steps for federal, state and local authorities to follow to comply with consular notification rules. It would also give foreign nationals in a small number of very serious cases the chance to prove that they were prejudiced by our own failure to provide them with the opportunity for consular assistance, consistent with our legal obligations.
Enactment of this legislation is also essential to our vital foreign relations interests. Our failure to act, and to act now, threatens our close partnership with Mexico, including in the fight against organized crime and drug trafficking and securing our border. Many other countries, including important U.S. allies, have pressed us to comply with these obligations with increasing urgency. Enacting this legislation will demonstrate to the world that we are a nation that keeps our promises. Failure to enact it invariably will harm our ability to secure U.S. interests across a range of law enforcement, security, and other goals.
To protect our citizens, we need to do our part to protect those of other countries. Because enactment of this bill serves our critical interests in protecting our citizens, preserving our foreign policy relations, and abiding by our promises under vital treaties we have ratified, I join the Department of Justice and the rest of the Administration in urgently calling on Congress to pass this narrow and carefully crafted legislation. Thank you very much.
Statement of Former U.S. Diplomats
Regarding the Execution of Humberto Leal Garcia
“The United States was founded on a commitment to the rule of law, and we believe it still stands for that commitment. But today’s execution of a foreign national of our critical international partner Mexico violates a binding legal obligation and threatens to undermine the strength of our credibility in the eyes of our international partners. We are disappointed that Texas has chosen not to comply with the clear international legal obligations of the United States under the U.N. Charter and unanimously confirmed by the Supreme Court.
“In light of this irrevocable breach of our nation’s international legal obligations, it is now more imperative than ever that Congress and the Obama Administration move immediately to provide for our nation’s full compliance in the future by enacting the Consular Notification Compliance Act.
“The ability of the United States to secure future international agreements vital to the protection of our citizens, our national security, and our commercial interests depends largely on whether this nation is perceived as honoring its international commitments. We now look to Congress and the Obama Administration to act without delay to discharge this treaty commitment on behalf of the entire United States. Prompt congressional action will ensure that the cases of other foreign nationals who did not receive the consular notification required by the Vienna Convention on Consular Rights will move towards a final and legal resolution that respects the rule of law.
“Congress and the Administration should move immediately to enact legislation ensuring compliance with our international obligations. The safety of our citizens abroad, and our nation’s reputation and standing among its international treaty partners, depend on it.”
Harry Barnes, Jr.
U.S. Ambassador to Chile, 1985-1988; U.S. Ambassador to India, 1981-1985; Director General of the Foreign Service 1977-1981; U.S. Ambassador to Romania, 1974-1977
John B. Bellinger, III
Partner, Arnold & Porter LLP; Legal Advisor to the Department of State, 2005-2009; Legal Advisor to the National Security Council, 2001-2005
David E. Birenbaum
Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson International Center for Scholars; U.S. Ambassador to the UN for UN Management and Reform, 1994-96
James R. Jones
U.S. Ambassador to Mexico, 1993-1997; Member of U.S. Congress (D-OK), 1973-1987
Thomas R. Pickering
Undersecretary of State for Political Affairs, 1997-2000; U.S. Ambassador and Representative to the United Nations, 1989-1992
July 7, 2011
Comment Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Denied Request For A Stay In The Leal Case
And On The Consular Notification Compliance Act
July 7, 2011
“I am disappointed that the Supreme Court has denied the administration’s request to grant a brief stay in the Leal case in order to allow Congress time to act on the Consular Notification Compliance Act. Americans detained overseas rely on their access to U.S. consulates every day. If we expect other countries to abide by the treaties they join, the United States must also honor its obligations.
“This case is not an isolated instance; the issue of consular notification remains a serious diplomatic and legal concern. Congress has a responsibility to ensure that the United States is meeting its obligations under the Vienna Convention on Consular Relations, and I will continue to work with Members on both sides of the aisle to enact this important legislation. The safety and well-being of U.S. citizens who study, work and travel overseas depends on it.”
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IACHR CONDEMNS EXECUTION OF LEAL GARCÍA IN THE UNITED STATES
Washington, D.C., July 8, 2011 — The Inter-American Commission on Human Rights (IACHR) condemns the judicial execution by the United States of Humberto Leal García, that took place on July 7, 2011, in Texas, in defiance of the precautionary measures the IACHR granted in his favor and without having complied with the recommendations issued by the Commission in the Merits Report on his case.
In 2008 the Inter-American Commission issued Report No. 45/08, in which it found the United States responsible for violations of the rights to equality, fair trial and due process of Humberto García Leal and others under Articles I, XVIII, and XXVI of the American Declaration of the Rights and Duties of Man in connection with the criminal proceedings that led to the imposition of the death penalty.
The IACHR determined, among other aspects, that the fact that the State had not met its obligation, under the Vienna Convention on Consular Relations, to inform the victims of their right to notification with respect to consular assistance meant that the criminal proceedings against them did not meet the minimum standards of due process and a fair trial established in Articles XVIII and XXVI of the American Declaration. The Commission concluded that if the State executed them based on those proceedings, it would be committing an irreparable violation of the fundamental right to life, protected in Article I of the American Declaration. Consequently, the IACHR recommended that the State, among other things, suspend the death sentence imposed on Leal García and the other victims in the case, and hold a new trial in accordance with the protections prescribed in the American Declaration—equality before the law, due process, and a fair trial, including the right to competent legal representation.
After the execution of Leal García was scheduled for July 7, 2011, the Inter-American Commission reiterated its request that the government of the United States stay the execution until a process could be established to arrange for a review of his case.
The Commission deplores the failure on the part of the United States to recognize its requests that the government respect the life of Humberto Leal García. The Commission urges the United States to implement the precautionary measures granted and the recommendations issued in its reports, and reiterates that the Government is obligated to fully and properly respect its international human rights obligations set forth in the American Declaration.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
“US in breach of international law after execution of Leal García in Texas ” – UN human rights chief
MEXICO CITY (8 July 2011) – The United Nations High
Commissioner for Human Rights, Navi Pillay, deeply regrets the execution in the
United States of Mexican national Humberto Leal García, after a last minute
decision by the US Supreme Court denying a stay of execution. Mr. Leal García
was sentenced to death for murder in Texas in February 1998.
“The execution of Mr. Leal García places the US in breach of international law,” said Pillay, who is currently on official mission in Mexico. “What the State of Texas has done in this case is imputable in law to the US and engages the United States' international responsibility. I am very disappointed that neither the Texas Board of Pardons and Paroles nor the Governor took steps open to them to prevent this breach of the US obligations under international law from occurring."
In addition to the normal UN position of opposing the death penalty as a matter of policy, this case raises particular legal concerns, as Mr. Leal García was not granted consular access, which – as a foreign national – was his right under Article 36 of the Vienna Convention on Consular Relations. The lack of consular assistance raises concerns about whether or not his right to a fair trial, guaranteed in the International Covenant on Civil and Political Rights and binding on the United States, was fully upheld.
In 2004, the International Court of Justice (ICJ) issued a ruling stating that the United States must review and reconsider the cases of 51 Mexican nationals sentenced to death – including the case of Mr Leal García – as they had not received consular services. This never took place.
“Today’s execution will undermine the role of the
International Court of Justice, and its ramifications are likely to spread far
beyond Texas,” Pilay said, noting that she had sent two letters on this issue
to the Governor of Texas, Rick Perry, and the Texas Board of Pardons and
Paroles. "It is also the responsibility of all federal countries ensure
that all individual states respect the international obligations assumed by the
country as a whole."
The US Federal Government had filed a brief to the Supreme Court in support of Leal García's pending application for a stay of execution. The brief highlighted the foreign affairs implications of such an execution, which is in breach of international obligations acknowledged to be binding. The Supreme Court, by a 5-4 majority, rejected the application, noting that in the years since the ICJ judgment, Congress had failed to pass legislation providing for a remedy to such violations of the Vienna Convention. "The federal Congress must also assume its responsibilities and act to remedy the gap in US law that this case has again sadly revealed in order to prevent its recurrence in the future."
EU’s Ashton On Execution Of Humberto Leal In Texas, USA
July 12, 2011
“The European Union deeply regrets the execution of Mr Humberto Leal Garcia in the State of Texas on 7 July 2011. Although Mr Leal was a Mexican citizen, the Texas authorities failed to notify him of his right to contact a Mexican consulate at the time of his arrest, as required by the Vienna Convention on Consular Relations. The execution of Mr Leal, before receiving the remedy to which he was entitled, is a breach of an undisputed international obligation.
The European Union recognises that a terrible crime was at the heart of this case and extends its sympathy to the family and survivors of the victim. Nonetheless, the EU opposes the use of capital punishment in all cases and under all circumstances, and calls for a global moratorium as a first step towards its universal abolition.”
USA / Death row: UN experts urge Government to stop scheduled execution of a Mexican national
GENEVA (1 July 2011) – The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez, today called on the United States Government to cancel the scheduled execution in the State of Texas of Humberto Leal García, a Mexican national, on 7 July 2011.
“If the scheduled execution of Mr. Leal García goes ahead, the United States Government will have implemented a death penalty after a trial that did not comply with due process rights,” Mr. Heyns said. “This will be tantamount to an arbitrary deprivation of life.”
Mr. Leal García was sentenced to death by the Texas Court of Criminal Appeals on 4 February 1998. His sentence was confirmed by the Texas Court of Appeals on 20 October 1999. “Conditions in death row during those 17 years are such that they amount to cruel, inhuman or degrading treatment according to well-established standards in international law,” Mr. Méndez said.
At the time of his arrest, in 1994, Mr. Leal García was not informed of his right to seek consular assistance. His case was the subject of a hearing before the International Court of Justice which found that the United States Government had breached its obligations under article 36 of the Vienna Convention on Consular Relations.* The Court later ordered the Government not to execute Mr. Leal García pending review and reconsideration of the case**. In June 2011, in response to a United States Supreme Court decision, a bill was introduced in the United States Congress aimed at implementing the decision of the International Court of Justice. The State of Texas, nonetheless, intends to proceed with the execution.
“If Texas goes ahead with the execution, it will be a breach of the international obligation of the United States,” stressed the experts. “Such an act will serve to undermine the role of the International Court of Justice.”
(*) Avena and Other Mexican Nationals (Mexico v. U.S.A.),
2004 I.C.J. 12.
(**) Request for Interpretation of the Avena Judgment, 2009 I.C.J. 139
112th Congress (2011-2012)
CONSULAR NOTIFICATION COMPLIANCE ACT -- (Senate - June 29, 2011)
Mr. LEAHY. Mr. President, on June 14, 2011, I introduced the Consular Notification Compliance Act. This legislation will help bring the United States into compliance with its obligations under the Vienna Convention on Consular Relations, VCCR, and is critical to ensuring the protection of Americans traveling overseas.
Each year, thousands of Americans are arrested and imprisoned when they are in foreign countries studying, working, serving in the military, or traveling. From the moment they are detained, their safety and well-being depends, often entirely, on the ability of U.S. consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home. That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty--including the United States.
As we now know, in some instances, the United States has not been meeting those obligations. There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate, and their consulate was never notified of their arrest, trial, conviction, or sentence. This failure to comply with our treaty obligations undercuts our ability to
protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be completely unacceptable to us if our citizens were treated in this manner.
The Consular Notification Compliance Act seeks to bring the United States one step closer to compliance with the convention. It is a narrowly crafted solution. It focuses only on the most serious cases--those involving the death penalty--but it is a significant step in the right direction and we need to work together to pass it quickly. Texas is poised to execute the next foreign national affected by this failure to comply with the treaty on July 7, 2011. He was not notified of his right to consular assistance, and the Government of Mexico has expressed grave concerns about the case. We do not want this execution to be interpreted as a sign that the United States does not take its treaty obligations seriously, or to further damage relations with an important ally with which we share a border. That message puts American lives at risk.
Since introduction of the Consular Notification and Compliance Act, the Department of Justice and the Department of State have worked with me to explain the importance of the bill, its limited nature, and the urgent need to see it passed. On June 28, Attorney General Holder and Secretary Clinton wrote to me in support of the ``carefully crafted, measured, and essential legislative solution'' included in the Consular Notification and Compliance Act. I will ask consent to have a copy of the letter printed in the Record at the conclusion of my remarks. We have already had productive discussions with Republicans and Democrats from both the House and Senate. I appreciate that others are willing to work together to address this critical issue.
I also want to note all of the favorable commentary the bill has generated, including multiple editorials in major newspapers and numerous letters of support from across the political spectrum. I also will ask that a selection of those be printed in the Record following my remarks.
Everyone agrees that this legislation is not about giving breaks to criminals. It is not about expanding habeas corpus relief. It is not about weakening the death penalty. This bill is about three things only. It is about protecting Americans when they work, travel, and serve in the military in foreign countries. It is about fulfilling our obligations and upholding the rule of law. And it is about removing a significant impediment to full and complete cooperation with our international allies on national security and law enforcement efforts that keep Americans safe.
The bottom line is this--our failure to comply with our legal obligations places Americans at risk. As chairman of the Senate Judiciary Committee, I am announcing that I intend to hold a hearing on this critical issue in July. We must work together, and we must act now.
Mr. President, I ask unanimous consent to have printed in the Record the letters and editorials to which I referred.
There being no objection, the material was ordered to be printed in the Record, as follows:
June 28, 2011.
Hon. PATRICK J. LEAHY,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: We thank you for your extraordinary efforts to enact legislation that would facilitate U.S. compliance with its consular notification and access obligations and to express the Administration's strong support for S. 1194, the Consular Notification Compliance Act of 2011 (CNCA).
The millions of U.S. citizens who live and travel overseas, including many of the men and women of our Armed Forces, are accorded critical protections by international treaties that ensure that detained foreign nationals have access to their country's consulate. Consular assistance is one of the most important services that the United States provides its citizens abroad. Through our consulates, the United States searches for citizens overseas who are missing, visits citizens in detention overseas to ensure they receive fair and humane treatment, works to secure the release of those unjustly detained, and provides countless other consular services. Such assistance has proven vital time and again, as recent experiences in Egypt, Libya, Syria and elsewhere have shown. For U.S. citizens arrested abroad, the assistance of their consulate is often essential for them to gain knowledge about the foreign country's legal system and how to access a lawyer, to report concerns about treatment in detention, to send messages to their family, or to obtain needed food or medicine. Prompt access to U.S. consular officers prevents U.S. citizen prisoners from being lost in a foreign legal system.
The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States. By sending a strong message about how seriously the United States takes its own consular notification and access obligations, the CNCA will prove enormously helpful to the U.S. Government in ensuring that U.S. citizens detained overseas can receive critical consular assistance.
The CNCA will help us ensure that the United States complies fully with our obligations to provide foreign nationals detained in the United States with the opportunity to have their consulate notified and to receive consular assistance. By setting forth the minimal, practical steps that federal, state, and local authorities must take to comply with the Vienna Convention on Consular Relations (VCCR) and similar bilateral international agreements, the CNCA will ensure early consular notification and access for foreign national defendants, avoiding future violations and potential claims of prejudice for those who are prosecuted and ultimately convicted. In this regard, the legislation is an invaluable complement to the extensive training efforts each of our Departments conducts in this area.
The CNCA appropriately balances the interests in preserving the efficiency of criminal proceedings, protecting the integrity of criminal convictions, and providing remedies for violation of consular notification rights. By allowing defendants facing capital charges to raise timely claims that authorities have failed to provide consular notification and access, and to ensure that notification and access is afforded at that time, the CNCA further minimizes the risk that a violation could later call into question the conviction or sentence. The CNCA provides a limited post-conviction remedy for defendants who were convicted and sentenced to death before the law becomes effective. To obtain relief, such defendants face a high bar: They must establish not only a violation of their consular notification rights but also that the violation resulted in actual prejudice. Going forward, the CNCA permits defendants who claim a violation of their VCCR rights an opportunity for meaningful access to their consulate but does not otherwise create any judicially enforceable rights.
After more than seven years and the efforts of two administrations, the CNCA will also finally satisfy U.S. obligations under the judgment of the International Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals (Mex. v. US.), 2004 I.C.J. 12 (Mar. 31). As we expressed in April 2010 letters to the Senate Judiciary Committee, this Administration believes that legislation is an optimal way to give domestic legal effect to the Avena judgment and to comply with the U.S. Supreme Court's decision in Medellin v. Texas, 552 U.S. 491 (2008). The CNCA will remove a long-standing obstacle in our relationship with Mexico and other important allies, and send a strong message to the international community about the U.S. commitment to honoring our international legal obligations.
The CNCA unmistakably benefits U.S. foreign policy interests. Many of our important allies and regional institutions with which we work closely--including Mexico, the United Kingdom, the European Union, Brazil and numerous other Latin American countries, and the Council of Europe, among others--have repeatedly and forcefully called upon the United States to fulfill obligations arising from Avena and prior ICJ cases finding notification and access violations. We understand that the Governments of Mexico and the United Kingdom have already written to Congress to express their strong support for this legislation.
This legislation is particularly important to our bilateral relationship with Mexico. Our law enforcement partnership with Mexico has reached unprecedented levels of cooperation in recent years. Continued noncompliance with Avena has become a significant irritant that jeopardizes other bilateral initiatives. Mexico considers the resolution of the Avena problem a priority for our bilateral agenda. The CNCA will help ensure that the excellent U.S.-Mexico cooperation in extradition and other judicial proceedings, the fight against drug trafficking and organized crime, and in a host of other areas continues apace.
In sum, the CNCA is a carefully crafted, measured, and essential legislative solution to these critical concerns. We thank you again for your work towards finding an appropriate legislative solution to this matter of fundamental importance to our ability to protect Americans overseas and preserve some of our most vital international relationships.
Eric H. Holder, Jr.,
Hillary Rodham Clinton,
Secretary of State.
Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee, On Introduction Of The Consular Notification Compliance Act
June 14, 2011
S. 1194. A bill to facilitate compliance with Article 36 of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and for other purposes; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I am introducing the Consular Notification Compliance Act. This legislation will help bring the United States into compliance with its obligations under the Vienna Convention on Consular Relations, VCCR, and is critical to ensuring the protection of Americans traveling overseas.
Each year, thousands of Americans are arrested and imprisoned when they are in foreign countries studying, working, serving the military, or traveling. From the moment they are detained, their safety and well-being depends, often entirely, on the ability of United States consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home. That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty--including the United States.
Unfortunately, in some instances, the United States has not been meeting those obligations. There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate and their consulate was never notified of their arrest, trial, conviction, or sentence. There are many other foreigners in U.S. prisons awaiting trial for non-capital crimes, some facing life sentences, who were similarly denied consular access. This failure to comply with our treaty obligations undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be completely unacceptable to us if our citizens were treated in this manner.
The Consular Notification Compliance Act seeks to bring the United States one step closer to compliance with the convention. It is not perfect. It focuses only on the most serious cases--those involving the death penalty--but it is a significant step in the right direction and we need to work together to pass it quickly. Texas is poised to execute the next foreign national affected by this failure to comply with the treaty on July 7, 2011. He was not notified of his right to consular assistance, and the Government of Mexico has expressed grave concerns about the case. We do not want this execution to be interpreted as a sign that the United States does not take its treaty obligations seriously. That message puts American lives at risk. The Government of Great Britain has expressed similar concerns about a case involving a British citizen facing the death penalty here, who was denied consular access.
The bill I am introducing would allow foreign nationals who have been convicted and sentenced to death to ask a court to review their cases and determine if the failure to provide consular notification led to an unfair conviction or sentence.
The bill also recognizes that law enforcement and the courts must do a better job in the future to promptly notify individuals of their right to consular assistance so the United States does not find itself in this precarious position again. To that end, the bill reaffirms that the obligations under the treaty are Federal law and apply to all foreign nationals arrested or detained in the United States. For individuals arrested on charges that carry a possible punishment of death, the bill ensures adequate opportunity for consular assistance before a trial begins.
This bill offers very limited remedies to a very limited number of people. I am troubled that it has to be so narrow, as we demand far broader protection for American citizens abroad every day. However, carrying out a death sentence is an irreversible action, and I believe that we must act quickly. I understand that a limited bill has the best chance of achieving the bipartisan support needed to move forward on such an important issue at this time.
Compliance with our consular notification obligations is not a question of partisan interest. There should be unanimous support for this bill. The VCCR was negotiated under President Kennedy, ratified during the Nixon administration, and it has been fully supported by every President since. President George W. Bush understood the critical need to honor our obligations under this treaty. Although he was ultimately unsuccessful, he vigorously worked to bring the United States into compliance, and he supported action along the lines of what I propose today. He understood the implications of non-compliance for our citizens, our businesses, and our military. I have no doubt President Obama shares the same commitment to resolving this issue.
I saw the need to resolve this issue first-hand this spring when a young, innocent Vermont college student was detained by Syrian police simply for taking photos of a demonstration. I worked hard with the U.S. consulate in Syria to obtain access to him. His safety depended on the ability of our consular officers to see him, provide assistance, and monitor his condition.
Similarly, the United States invoked the VCCR to seek access to the three American hikers detained in Iran after accidently crossing an unmarked border in 2009. In 2001, when a U.S. Navy surveillance plane made an emergency landing in Chinese territory, the State Department cited the VCCR in demanding immediate access to the plane's crew.
I doubt there are many Members of Congress who have not sought similar help from our consulates when their constituents have been arrested overseas. We know how critically important this access is, and we expect other governments to provide it. Those governments expect no less of us.
This bill has the support of the Obama administration, including the Department of Justice, the Department of Defense, the Department of Homeland Security, and the Department of State. I have heard from retired members of the military urging passage of the bill to protect service men and women and their families overseas, and from former diplomats of both political parties who know that compliance with our treaty obligations is critical for America's national security and commercial interests.
Given the long history of bipartisan support for the VCCR, there should be unanimous support for this legislation to uphold our treaty obligations. A failure to act places Americans at risk.
Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed in the Record.
State courts and foreign nationals
BY CARA ROBERTSON
Published in: Other Views
Published Wed, Jul 13, 2011
RESEARCH TRIANGLE PARK --When I was the lone American lawyer advising the Appeals Chamber of the U.N. War Crimes Tribunal in the Hague 10 years ago, I had an additional unofficial task: explaining the U.S. legal system to my international colleagues. Most found our notions of federalism, with its parallel state and federal judicial systems, mystifying; many objected to what seemed to be the United States' cavalier attitude towards international law.
The Supreme Court's refusal to delay Texas' latest execution of a Mexican national - over the objections of the White House and State Department - provides evidence for both views. More than that, it is an international embarrassment.
In an unsigned majority opinion, the Supreme Court refused to grant a stay of execution to Humberto Leal Garcia, ignoring the Obama administration's claim that permitting his execution without further review would cause "irreparable harm" to U.S. foreign policy interests. Although pending congressional legislation would have ensured Leal's right to a hearing, the majority declined to enforce even a short delay.
Four justices disagreed. In a dissent, joined by Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer noted the president's unique authority in foreign relations and took issue with the majority's conclusion that Congress need not be given more time to act. (Leal was executed Thursday.)
Despite the court's 5-4 split along ideological lines, this is not a partisan issue. Three years ago, President George W. Bush intervened in a similar case, ordering the states to comply with a 2004 decision of the International Court of Justice, popularly known as "the World Court." That decision directed the United States to give "effective review" to the Mexican nationals on death row who had not been informed, upon arrest, of their right to seek the assistance of their consul under the Vienna Treaty on Consular Relations. Bush recognized the danger of ignoring the ICJ's directive. Obligations under the Treaty on Consular Relations are reciprocal and provide important protections to Americans abroad.
Texas rebelled, refusing to allow a Mexican citizen on death row to raise the claim in his state post-conviction review. The Supreme Court ultimately held, in Medellin v. Texas, that although the United States was bound by the treaty, the ICJ's decision was not directly enforceable federal law. Unless Congress passed a law specifically executing the ICJ's judgment, Texas (and other states) were free to ignore it.
At the time, many applauded the Supreme Court's protection of our domestic criminal courts from foreign intrusion. But the International Court of Justice is not some overreaching tribunal. Rather, it is the principal judicial organ of the United Nations, empowered to decide disputes between U.N. member states that explicitly consent to its jurisdiction.
It settles border disputes and offers authoritative interpretations of treaties and other instruments of international law. Its rulings are final, binding on member states and enforceable by the Security Council.
Consisting of 15 judges whose service at the ICJ represents the pinnacle of distinguished careers, the ICJ often renders pragmatic judgments and, like our own Supreme Court, is not above ducking contentious issues in favor of deciding cases on neutral procedural grounds.
Indeed, it handled this issue with some finesse: The ICJ held, in the Case Concerning Avena and other Mexican Nationals, that the United States violated the Vienna Convention on Consular Relations by failing to inform the Mexican nationals of their rights under the treaty, in particular, the right to notify their consul and thus seek his legal assistance. But the ICJ softened the blow, requiring the United States "to provide, by means of its own choosing, review and reconsideration of the [Mexican nationals'] convictions and sentences" to determine whether the failure to comply with the Convention "caused actual prejudice to the defendant."
In other words, unless notifying the consul would have changed the outcome at trial, the Mexican nationals remain in prison or, more precisely, on death row.
How best to mitigate the damage Texas has caused? Ideally, Congress would pass the Consular Notification Compliance Act to ensure enforcement of the treaty's protections. But it is equally true that Texas, as an exercise of its own sovereign largess, could undertake the review demanded by the ICJ. Such review is unlikely to change the prisoners' fates. Assuming the evidence against the convicted men is as strong as Texas has contended, it would be hard to find "actual prejudice" - i.e., that Texas' failure to inform the consul led to the defendant's conviction or death sentence.
Such action is in every American's interest. After all, even Texans have been known to travel south of the border.
Cara Robertson is a resident associate at the National Humanities Center in Research Triangle Park.
Consular access: A two-way street on a crucial right
In 2009, while on assignment for Current TV, my colleague Laura Ling and I were arrested by North Korean soldiers for crossing the frozen Tumen River, which separates the Republic of China and North Korea. We were imprisoned and isolated from one another for 41 / 2 months. We were repeatedly interrogated, eventually put on trial and sentenced to 12 years’ hard labor. It was only through the extraordinary efforts of the State Department and former president Bill Clinton that we were pardoned and allowed to return home.
It is difficult to describe the fear that comes with being arrested and detained in a foreign country. The sense of darkness in that first week of North Korean captivity was unbearable. My biggest fear was nobody knowing where I was or what had happened to me. The strained relations between the United States and North Korea only increased my despair. In the middle of the second week, though, I was handed a lifeline: a meeting with the Swedish ambassador, who represented U.S. interests and pointed out to North Korea its responsibilities under the Vienna Convention on Consular Relations. His hard work yielded a meeting no longer than 10 minutes, but the significance is hard to express. I can only mention the sense of security I now had — that someone outside of North Korea was monitoring my case. The prompt consular access, I believe, protected me from any physical mistreatment by my captors. I was allowed to meet with the ambassador three more times. The meetings were my only communication with the U.S. government — the only way for me to ask for help and to deliver messages to my family. I know the importance of what the Vienna Convention provides.
Legislation has been introduced in Congress to ensure judicial review of death penalty cases involving foreign nationals who were not given consular access under the Vienna Convention. This legislation is not only a matter of honoring our obligations to such inmates. There are still many American journalists, aid workers, missionaries, members of the military and tourists detained in foreign countries. For all of them, and for their fearful families at home, there is nothing more important than upholding the reciprocal right to consular protection. With this legislation, Congress can protect that right.
The United States failed to abide by the Vienna Convention in the case of Humberto Leal Jr., a Mexican national who is scheduled to be executed in Texas on July 7. While I am not questioning the verdict of the jury that convicted him of murder, our obligations under the Vienna Convention are clear in all cases, including Leal’s. Indeed, the International Court of Justice (ICJ), the judicial arm of the United Nations, held that foreign nationals such as Leal have a right to a hearing to determine if they were harmed by not being told of their consular rights. Former president George W. Bush, all nine U.S. Supreme Court justices and the Obama administration agree that the United States is obligated to comply with the ICJ’s decision.
Then why don’t we? The United States has always been in the forefront of the fight for human rights. People look to us to be a watchdog for human rights violations around the globe. We ask the world to treat our citizens with respect when they are detained in other countries, including honoring their right to consular access. It is a two-way street. The United States must lead by example in honoring consular treaty obligations and in providing a remedy when that right is violated. If Congress does not act swiftly, other countries will be encouraged to violate the consular rights of U.S. citizens traveling abroad. I know firsthand that this is a risk we cannot take.
Euna Lee is a journalist and the author of “The World is Bigger Now: An American Journalist’s Release from Captivity in North Korea.”
Time to comply with the Vienna Convention
The U.S. is obliged to afford a judicial remedy to foreign nationals like Humberto Leal, scheduled to be executed July 7.
The National Law Journal
June 27, 2011
U.S. citizens travel, study and work abroad in vast numbers. Every year, thousands of them are detained and sometimes jailed, not always under circumstances comporting with U.S. views of due process. The bulwark of their protection is the Vienna Convention on Consular Relations, which binds the United States and 172 other countries to notify nationals of treaty partners who are arrested or detained of their right to contact the consulate of their country.
The Vienna Convention has been the supreme law of the land since 1969, when it was unanimously approved by the Senate and brought into force by President Richard Nixon. The Senate gave advice and consent on the basis that the treaty would be self-executing — that is, that no implementing legislation would be needed.
This premise turned out to be incorrect. In Medellin v. Texas (2008), the U.S. Supreme Court held that an international judgment based on the Vienna Convention could not be given effect as directly applicable federal law. Rather, Congress would have to adopt the necessary legislation to enable the United States to comply with its treaty obligations.
It is now urgent for Congress to enact such legislation. Since 2004, when Mexico obtained a ruling from the International Court of Justice (ICJ) on remedies for U.S. treaty violations affecting 51 Mexican nationals on death row in U.S. states (Avena and Other Mexican Nationals), the United States has been under a binding obligation to afford a judicial remedy to those individuals.
One of them, Humberto Leal, is scheduled to be executed by the state of Texas on July 7. As in Medellin, Texas maintains that despite the binding force of the ICJ judgment in international law, Texas is not required to implement it unless Congress enacts legislation so providing. Until Congress acts, the United States remains in continuing default of its international legal obligations; and if it does not act before Leal's execution date, the damage will be irreparable.
The United States has a long history of successfully resolving disputes over consular rights through international arbitration and adjudication. In 1927, a U.S.-Mexican claims commission held that "a foreigner, not familiar with the laws of the country where he temporarily resides, should be given opportunity" for consular access. The Vienna Convention codifies this international practice.
Under Article 36 of the Vienna Convention, a foreign national who is arrested or detained for any reason whatsoever must be notified "without delay" of his right to communicate with the consular post of his country. The 51 Mexican nationals covered by the Avena judgment were not given any such notice and thus Mexico was unable to give them consular services in their trials on capital charges.
Between 1969 and 2005, the United States consented to an optional protocol to the Vienna Convention under which disputes with other treaty partners could be brought to the ICJ for binding decision. In 1979, the United States invoked this procedure against Iran in the Tehran hostages case and received unanimous favorable decisions from the ICJ in 1979 and 1980, which helped the United States muster support from other states toward resolution of the hostage crisis in January 1981.
Mexico availed itself of this same consent-based procedure in asking the ICJ to determine the remedy for repeated U.S. breaches of the Vienna Convention. The United States did not contest that Texas and several other states had placed the United States in violation of binding obligations to Mexico by failing to notify the 51 death row inmates of their right to contact the Mexican consulate. The ICJ ruled that the remedy for the treaty violations would be judicial hearings to review whether there had been prejudice affecting each national's conviction or sentence from the lack of consular notice.
The case of Leal is illustrative of the need for consular services when foreign nationals are on trial for serious charges. Leal was born in Mexico and moved to a poverty-stricken area of San Antonio, where his family struggled in unfamiliar circumstances. He suffered from brain damage, learning disabilities and abusive treatment, including sexual abuse by a priest. Although he had to repeat several school grades, he became the first member of his family to graduate from high school and never had a criminal conviction before being arrested for murder.
Without resources, Leal received grossly inadequate representation during his pretrial, trial, sentencing and appellate proceedings. One of his trial attorneys has twice been suspended from law practice. Counsel failed to challenge unreliable forensic evidence at trial or to introduce mitigating evidence at the penalty phase. The Mexican government regularly offers consular services in death penalty cases that could have changed the result and averted the death sentence.
On June 14, Senator Patrick Leahy (D-Vt.) introduced legislation that would ensure U.S. compliance with international obligations pursuant to Article 36 of the Vienna Convention on Consular Relations. The "Consular Notification Compliance Act" provides for federal court review in cases of foreign nationals convicted and sentenced to death prior to its enactment, specifically on the question of whether the denial of prompt and ongoing consular access resulted in prejudice in those cases. The legislation also increases opportunities to ensure early compliance with all consular notification in future capital cases involving foreign nationals. Congress must move quickly to pass this legislation. In the meantime, Leal's execution should be stayed to avoid the irreparable damage that will result if he is executed before the treaty-based judicial hearing that the United States is obliged to provide.
Lori F. Damrosch is the Hamilton Fish Professor of International Law and Diplomacy and the Henry L. Moses Professor of Law and International Organization at Columbia Law School.
Editorial Board Opinion
Congress should act before another foreign national is denied consular access
Washington Post, Tuesday, July 12, 7:57 PM
HUMBERTO LEAL JR., who was executed in Texas on Thursday, was one of 40 Mexican nationals on death row in the United States who were not advised of their right to consular access under the Vienna Convention for Consular Relations. The United States, as one of about 160 countries that signed the treaty, is obligated to notify foreign nationals who are arrested in the United States of their right to speak with their embassies. U.S. citizens have the same rights if they are arrested in a country that is also a signatory, which may be particularly important in countries that do not routinely allow defendants access to lawyers.
In an extraordinary move, the Obama administration had asked the Supreme Court to stay Mr. Leal’s execution. The request was intended to give Congress a few months to move on legislation that would have addressed the Vienna Convention breach. That legislation, introduced by Sen. Patrick J. Leahy (D-Vt.) in June, would have allowed Mr. Leal and the 39 other Mexican nationals a one-time special hearing before a federal court judge to determine whether the failure to allow consular access significantly harmed their ability to defend themselves. The hurdles would have been high, meaning that few, if any, would have been likely to win new trials. Mexico joined in asking the court for a stay, as did former U.S. diplomats from Republican and Democratic administrations.
The Supreme Court denied the request in a 5 to 4 unsigned opinion. The court concluded that it had the obligation “to rule on what the law is, not what it might eventually be.”
Justice Stephen Breyer, writing for the four dissenters, had the better argument when he noted that the court had substantial leeway to order a temporary stay. The circumstances were especially compelling, Justice Breyer noted, because of the administration’s assertions that failure to stop the execution would put “the United States in irremediable breach of its international-law obligation” and could trigger “serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.”
Although we disagree with how the court disposed of this case, the majority makes a critical point: It has been seven years since the judicial arm of the United Nations found that the United States violated the Vienna Convention by not notifying Mr. Leal and his compatriots of their rights to consular access. It should not take another seven years before Congress acts to remedy the situation.
The World Is Watching
New York Times
July 7, 2011
On Thursday, Humberto Leal Garcia Jr. is scheduled to be executed in Texas at 6 p.m. Mr. Leal, a Mexican citizen, has petitioned the Supreme Court for a stay of execution, while a bill is pending in Congress that would give him the right to a hearing about the violation of his rights under the Vienna Convention on Consular Relations. The justices should grant the stay to allow Congress to pass the law. It would ensure that states are in compliance with the treaty, which requires that foreign nationals be told of their right to have their embassy notified of their arrest.
On Tuesday, the Texas Board of Pardons turned down Mr. Leal’s request for a 180-day stay of execution following a denial by the Texas Court of Criminal Appeals. The state court ducked blame by saying that Gov. Rick Perry had the power to grant a one-time 30-day stay so Texas could “honor its duty under the Supremacy Clause to honor the treaty obligations of the United States.”
The Supreme Court is Mr. Leal’s last hope. The court ruled in 2008 that Texas did not have to comply with the treaty because there was no federal law requiring states to do so. But Chief Justice John Roberts Jr. indicated that once Congress took up the treaty issue, it would be unjust not to allow a foreign citizen to have his case reviewed.
The solicitor general filed a brief supporting a stay because that would “serve compelling national interests.” The Mexican government told the court a stay was “absolutely critical.” Congress is in the process of fixing the gap in the federal law. It would be a miscarriage of justice if the Supreme Court allowed Mr. Leal’s execution before Congress could complete that remedy.
Keeping our word: Scheduled Texas execution violates treaty
and endangers Americans abroad
Copyright 2011 Houston Chronicle
June 22, 2011
Americans traveling abroad are protected, whether they are aware of it or not, by a treaty called the Vienna Convention on Consular Relations, ratified by about 170 countries, which guarantees them access to U.S. consular assistance if they are detained or arrested in a foreign country. In 2010, more than 6,600 Americans were arrested abroad, and more than 3,000 were incarcerated. Many of them benefited from the protections of this treaty.
But unfortunately, the U.S. has repeatedly failed to offer those same protections to foreigners on U.S. soil. The most egregious of these violations is the denial of consular assistance to foreign nationals convicted and sentenced to death. (Currently, about 100 foreign nationals are on U.S. death rows.) And in a particularly urgent case, one of those individuals whose rights were violated, a Mexican national named Humberto Leal Garcia, is scheduled to be executed on July 7 in Huntsville.
Because a bill has been introduced to bring the U.S. into compliance with the treaty, Leal's attorneys have filed a federal petition and a motion for a stay of execution so that Leal will be alive and eligible for the remedies of this legislation when it becomes law.
There are compelling reasons why these petitions should be granted. Chief among them is the fact that this pending legislation will allow for review of cases like Leal's, said his attorney Sandra Babcock, "where lack of consular assistance may well have made the difference between life and death. That's why the consular access really matters." Mexico provides top-flight legal assistance to its nationals under such circumstances.
Leal's court-appointed attorneys were ineffective and inexperienced, Babcock told the Chronicle, resulting in harm to Leal in both the guilt-or-innocence and the penalty phases of his trial. According to Babcock, they failed to challenge the prosecution's "junk science" and flawed DNA evidence or to present expert testimony on Leal's learning disabilities and brain damage. Leal, sentenced to death for the 1994 rape and murder of a 16-year-old girl, was then 21 and had no criminal record.
Also, there is no dispute that this treaty is the law: In 2003, Mexico filed suit against the U.S., claiming that 51 Mexican nationals sentenced to death in U.S. courts had been denied consular access. (Leal was one of them.) In 2004, the International Court of Justice ruled that the U.S. must review those individuals' cases. The issue was finally resolved, in 2008, by the U.S. Supreme Court, which unanimously supported the ICJ decision but ruled that it was up to Congress to implement it.
That is what Senate Judiciary Committee Chairman Patrick Leahy addressed last week, when he introduced legislation to allow federal courts to review such cases, and to increase compliance and provide remedies.
And finally, as Leahy eloquently stated, the U.S. failure to honor its treaty obligations "undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be completely unacceptable to us if our citizens were treated in this manner."
For all of these reasons, we urge Congress to act swiftly to pass this legislation, and we urge Gov. Perry to give Leal, and others in his situation, the time to benefit from its remedies if they are shown to have been harmed.
The Treaty and the Law
New York Times
Humberto Leal García Jr., a Mexican citizen who faces execution in Texas next month, has petitioned Gov. Rick Perry for a six-month reprieve. He is asking for a stay under a vital international law, the Vienna Convention on Consular Relations, which requires that foreign nationals who are arrested be told of their right to have their embassy notified of that arrest and to ask for help.
In recent years, the treaty has provided important protection for Americans who have been detained in Iran, North Korea and elsewhere. Mr. Leal was not notified after his arrest of his right to contact his embassy. But the Supreme Court ruled in 2008 that Texas did not need to comply with the treaty because there is no federal law requiring that states do so.
Senator Patrick Leahy of Vermont on Tuesday introduced a bill that makes clear that federal law requires that states tell foreign nationals who have been arrested that they can contact their consulates for help.
For those who were convicted and sentenced without being told, the bill would let them ask a federal court to review their case and decide whether the outcome would have been different if they had had diplomatic help. After the bill was introduced, Mr. Leal petitioned Federal District Court for a stay to keep Texas from “rushing to execute” him before Congress has time to act.
Mr. Leal, convicted of murder during a sexual assault, had grossly incompetent legal representation. If he had been given access to a Mexican diplomat, he would have had a chance at better counsel and likely the opportunity to strike a plea deal, avoiding the death penalty.
For the sake of justice, the governor and court should grant the stays. For the protection of foreigners arrested here, and American citizens arrested abroad, Congress should pass Senator Leahy’s bill.
Editorial Board Opinion
Why the U.S. should allow arrested foreigners to contact their consulates
Monday, June 13, 2011
Humberto Leal Jr. is scheduled to be put to death by the state of Texas next month for the 1994 murder of a 16-year-old girl. Like so many cases involving capital punishment, Mr. Leal’s has generated controversy, but not for the typical reasons.
Mr. Leal is a Mexican national. When he was arrested, Texas officials failed to advise him of his right to communicate with his country’s embassy as required by the Vienna Convention on Consular Relations. The United States, Mexico and some 160 other countries are signatories to the convention. Mr. Leal is one of roughly 40 Mexican nationals who were not advised about consular access and who sit on death row in this country.
Mexico filed a grievance on behalf of its nationals and prevailed in 2004 before the International Court of Justice (ICJ), the judicial arm of the United Nations. The ICJ concluded that the United States was obligated to comply with the treaty and that it should review these cases to determine whether the defendants had been harmed by the lack of notification.
Texas, where the majority of these inmates are held, balked. Three years ago, the state executed Jose Ernesto Medellin, another Mexican national who was not informed of his right to consular access and who was denied additional review. The state is likely to take the same approach in the Leal case. “Here, in Texas, if you commit terrible and heinous crimes you’re going to pay the ultimate price,” says Katherine Cesinger, press secretary to Gov. Rick Perry (R).
This misses the point entirely. This is not about coddling criminals nor is it a referendum on the death penalty. It is about a country’s obligation to honor its treaty commitments. The United States must comply with the Vienna Convention — and demonstrate good faith in addressing past mistakes — if U.S. citizens abroad are to be afforded the same rights and protections.
Sen. Patrick J. Leahy (D-Vt.) is expected to introduce legislation as soon as this week to provide meaningful review in federal court for those denied consular access. The legislation should be narrowly tailored and mandate that the legal proceedings focus solely on whether denial of access seriously prejudiced an inmate’s ability to defend against charges. The bar for success should be high, and only those who can provide compelling evidence of such harm should be allowed a new trial or benefit from a reduced sentence.
To avoid this problem in the future, federal and state governments should be diligent about abiding by the treaty’s mandates. The State Department should continue its outreach to state and local governments to impress upon law enforcement officials the importance of the consular notification. Complying with the treaty is not only the right thing to do; it is the smart and self-interested thing to do.
Execution case important to international relations
Friday, June 10, 2011
The Golden Rule of life also applies to the tricky business of international relations. What we do to non-Americans in our country we can reasonably expect to be done unto Americans in other countries.
It is for that reason that Gov. Rick Perry and the Texas Board of Pardons and Paroles — both in the uncommon position of making a decision with international impact — should commute or postpone the death sentence of Humberto Leal, a Mexican raised in Texas, scheduled to die July 7 for the 1994 murder of Adria Sauceda, 16, in Bexar County.
The key issue in this case at this point is not whether Leal committed the crime. Also not central now are the circumstances involving Leal, including sexual abuse by a priest, a challenging family history and other factors that, though significant, fail to add up to justification for murder. They could, however, count as mitigating factors that argue for a life sentence.
It's what happened after Sauceda was killed that is at issue. More specifically, it's what didn't happen. Despite the Vienna Convention on Consular Relations requirements, Leal was not informed of his right to contact Mexican officials to seek legal assistance. Records indicate that he was not aware of that right until told about it by a fellow death row inmate.
Instead of getting legal help from Mexican consular officials, who have a track record of providing quality legal representation for Mexicans facing the death penalty in the U.S., Leal was represented by a court-appointed team that included a lawyer who twice had his license suspended.
Back in 2004, the International Court of Justice said Leal was entitled to a hearing to determine the extent of harm he suffered as a result of the lack of consular access. A U.S. Supreme Court ruling has said the U.S. must comply with the decision by the international court. Texas, citing state law, said no such hearing could take place. Congress now is poised to consider legislation, to be filed in coming weeks, that would establish a procedure for a federal court hearing on the extent of harm caused to Leal because he was not advised of his right to contact Mexican officials.
In a clemency petition filed this week, an impressive list of former U.S. diplomats, retired military leaders and others concerned about international matters urged a stay of execution to grant Congress time to deal with this case.
At stake, they said, are the consular rights of Americans who become entangled in legal problems while out of the country.
"For Texas to proceed with (Leal's) execution prior to full compliance with these treaty obligations would endanger the interests of American citizens and the United States around the world," John B. Bellinger III, a State Department legal adviser in the George W. Bush administration, said in a letter signed by others and delivered to Perry.
The former military leaders told Perry that "improving U.S. enforcement of its consular notification and legal access obligations will help protect American citizens detained abroad, including U.S. military personnel and the families stationed overseas."
Sandra L. Babcock, a Northwestern University law professor representing Leal, said he would not have been convicted if he had received proper consular assistance. We have no way of knowing that. But there is no arguing with Babcock's contention that "with consular access, Mr. Leal would have had competent lawyers and expert assistance that would have transformed the quality of his defense."
And, as she noted, Mexican officials have developed expertise in helping Mexicans facing the death penalty in the U.S.
"It really is a very modest remedy we are talking about," Babcock said.
Modest, indeed, but with important international ramifications.
Op-eds and editorials prior to 2011
Lawlessness North of the Border
By JOHN B. BELLINGER III
New York Times
Published: July 17, 2009
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, 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.
No citizen is more in need of consular support than one who faces the terrifying ordeal of arrest and imprisonment under a foreign legal system. Immediate access to a consular representative provides trustworthy guidance through the morass of a bewildering judicial process and affords a secure link to home. In some parts of the world, consular assistance is all that stands between foreign prisoners and abuse, torture or even death in custody.
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
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.
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.
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
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."
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.
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
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
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
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
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.
U.S. Department of State
Office of the Spokesman
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.