The Obama administration, UN officials, and foreign leaders are asking Texas Governor Rick Perry and/or the U.S. Supreme Court to stay today’s execution of a Mexican citizen on death row in Texas for a crime he committed in 1994. At issue is not his guilt or innocence, the legality of the death penalty, or whether he was given adequate due process guaranteed under the Texas Criminal Code or the U.S. Constitution. Rather, at issue is a treaty violation. When Texas authorities arrested Humberto Leal Garcia Jr., a Mexican national, they failed to inform him of his right to consular notification, thereby violating Article 36 of the Vienna Convention on Consular Relations of 1963, which the United States accepts as legally binding under international law.
A stay of the planned execution does not mean that he will be automatically exonerated or released. Rather, the remedy for the breach of consular notification, pursuant to the Avena case of the International Court of Justice, would be for the United States to establish a mechanism to review and reconsider the case.
Finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (h), of the Convention having been respected, the United Slates of America shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of this Judgment.
Source: Avena and Other Mexican Nationals (Mexico v. United States of America), International Court of Justice (ICJ) (31 March 2004); cite: Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31)
See also Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), International Court of Justice (ICJ) (6 May 2008)
The U.S. Supreme Court ruled in Medellin v. Texas that the ICJ’s decision was not binding in the absence of federal legislation implementing the consular notification requirement. Senator Patrick Leahy, Chairman of the Senate Committee on Judicial Affairs, introduced such legislation last month. Although that legislation has not been enacted into law, the fair and equitable administration of justice requires further judicial review and reconsideration of Leal’s case prior to the potential and irreparable deprivation of his life.
Today’s outcome has legal and political repercussions for the fair and equitable treatment of U.S. citizens detained and facing criminal prosecution abroad.
Article 36 of the Vienna Convention on Consular Relations of 1963
Article 36 requires authorities, without delay, to advise any foreign national who is arrested or detained of the right to have consular officials notified. The public policy of the notification requirement is to safeguard the individual’s right to communicate with his or her government, to receive information about the rights of detained nationals, and to seek legal assistance when culture, language, and differing laws may create barriers to adequate representation.
Communication and contact with nationals of the sending State
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to
communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without
delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
Currently, 173 countries are parties to the Convention and are legally bound by its obligations. Of that, 48 countries, are parties to the Optional Protocol granting the International Court of Justice compulsory jurisdiction over disputes. The United States revoked its acceptance of the Optional Protocol on March 7, 2005, shortly after the Avena Judgment.
Mandatory consular notification, regardless of whether the arrested or detained foreign national requested notification, is required for the following countries and jurisdictions: Antigua and Barbuda, Armenia, Azerbaijan, The Bahamas, Barbados, Belarus, Belize, Brunei, Bulgaria, China, Costa Rica, Cyprus, Czech Republic, Dominica, Fiji, Gambia, Georgia, Ghana, Grenada, Guyana, Hungary, Jamaica, Kazakhstan, Kiribati, Kuwait, Kyrgyzstan, Malaysia, Malta, Mauritius, Moldova, Mongolia, Nigeria, Philippines, Poland, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Tajikistan, Tonga, Trinidad and Tobago, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uzbekistan, Zambia, and Zimbabwe.
The United States ratified the Convention in 1969 upon advice and consent by the Senate and the U.S. President’s signature.
International Court of Justice and the Avena Judgment
In January 2003, Mexico brought suit against the United States before the ICJ (also known as the World Court) to challenge violations of the Vienna Convention for 54 Mexican nationals (later reduced to 51) deprived of consular notification by various U.S. authorities and sentenced to death in California, Texas, Illinois, Arizona, Arkansas, Florida, Nevada, Ohio, Oklahoma, and Oregon. Mexico asserted that it was harmed directly by the violations and indirectly through the violations of its citizens. At the time, the United States recognized compulsory jurisdiction of the ICJ on such matters under the Optional Protocol to the Vienna Convention on Consular Relations.
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.
The ICJ ruled that the United States breached its treaty obligations under the Vienna Convention on Consular Relations. As a remedy, the Court held that the United States must provide “by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.” The Court rejected Mexico’s request for automatic partial or total annulment of the convictions or death sentences.
- finds by fourteen votes to one that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment;
The United States did not deny that it violated the treaty; rather, it asserted that any remedy under the treaty was limited to the Mexican government and did not extend to individuals. As such, the United States refuted the ICJ’s finding that the treaty created a justiciable individual right. The U.S. argued that the purpose of the treaty was to foster and maintain consular relations among foreign governments and that any remedy arising from noncompliance remained solely justiciable between governments. The United States argued that the political treaty governing foreign relations did not contain enforceable human rights provisions for individuals because those provisions are supplied in human rights treaties. Accordingly, the United States could not foresee an interpretation of the treaty by the ICJ creating such individual due process rights as legally binding on states.
Vienna Convention on Consular Relations
- Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261.
- Optional Protocol concerning the Compulsory Settlement of
Disputes, Apr. 24, 1963, 596 U.N.T.S. 487.
International Court of Justice
- International Court of Justice
- Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), International Court of Justice (ICJ) (6 May 2008)
- Avena and Other Mexican Nationals (Mexico v. United States of America), International Court of Justice (ICJ) (31 March 2004); cite: Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31)
Inter-American System and Organization of American States