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In 1969, the U.S. voluntarily ratified the Vienna Convention on Consular Relations. The treaty guarantees diplomats immediate access to their citizens arrested in a foreign country. U.S. embassies routinely rely on it to protect U.S. citizens arrested in the other 164 nations that are now party to the agreement. In return, U.S. law enforcement authorities are obligated to notify appropriate Consular authorities in the U.S. when they arrest foreign nationals.

But on March 31, the International Court of Justice (ICJ) ruled – for the third time in recent years – the U.S. is not fulfilling its obligations under the Vienna Convention. Siding with Mexico, the ICJ concluded that the U.S. violated the consular rights of 51 Mexican citizens now on death row in eight U.S. states. Specifically, U.S. authorities failed to inform the Mexican Consulate “without delay” of their arrest of these prisoners. In 34 of the 51 cases at issue, notice came too late for the Mexican Consulate to arrange legal counsel.
In the case of Osbaldo Torres, for example, it took three years for Mexico to even learn of Torres’ 1993 arrest, by which time he had been tried for murder and sentenced to death twice in Oklahoma. A state court set an execution date for Torres in March, before the ICJ had even ruled, despite the urging of Oklahoma’s Attorney General that it be delayed “out of courtesy” to the ICJ. Torres’ execution still looms on May 18.

U.S. Response

The State Department’s legal bureau is reported to be studying the ICJ decision in consultation with various other agencies that would be affected. “Each case should be looked at individually,” a Department spokesperson told the ABA Journal. “It does not mean that there must be a different outcome.”

State and federal authorities in the U.S. have repeatedly asserted that Mexican consular assistance would not have made any difference in the prisoners’ cases. Mexican Foreign Ministry lawyer Juan Manuel Gomez Robledo strongly disagrees, noting that Mexican defendants are routinely assigned lawyers who “speak little or no Spanish and have no experience in death penalty cases.” He insists that following the treaty would ensure Mexican citizens get a fair trial, which could mean “the difference between life and death.”

In Texas, where 15 of the 51 prisoners face execution, Governor Rick Perry showed open distain for the ruling: “the International Court of Justice doesn’t have jurisdiction in Texas.” In fact, Article 6 of the U.S. Constitution explicitly states that all ratified treaties are “the supreme law of the land” and are binding on “judges in every state.” Back in 1998, a report from the U.N. Commission on Human Rights revealed that such ignorance among state officials is likely widespread; outside the State Department, those officials who met with the U.N.’s investigator (Texas officials had refused) displayed little or no knowledge of their obligations under international law.

Jurisdiction of the International Court of Justice

Based in The Hague, the International Court of Justice is the principal judicial body of the United Nations. Under the Vienna Convention, the ICJ has “compulsory jurisdiction” to settle disputes between nations over the treaty’s interpretation and application. “It’s not as though the World Court just assumed jurisdiction in this case,” one of Mexico’s lawyers in the case told the National Law Journal. “It’s part of the agreement that these countries signed.”

The ICJ’s March ruling orders U.S. courts to review each of the 51 Mexicans’ convictions and death sentences, taking into account the consular rights violations. While the Court was not directive about how such reviews should be conducted, it did make clear that additional judicial process was required, as opposed to clemency review by a governor or state pardon board.

The Court did explicitly forbid U.S. courts from simply dismissing the issue because the prisoner had failed to raise it early enough in the appeals process. This is particularly important given that the violation involved the U.S. failure to properly inform the Mexicans of their rights on time, when they were still defendants. Indeed, to deny legal review based on such procedural barriers to foreign nationals who were denied information about their consular rights in the first place sets up the ultimate catch-22.
Torres encountered just this catch-22 when he tried to raise the consular violations in his federal appeal – he was told it was too late and that Mexico’s help would not have made a difference anyway. The U.S. Supreme Court refused his appeal of this issue in November 2003, with Justices Stevens and Breyer dissenting. How Torres’ lawyers should now proceed is far from clear.

Broader Impact

While the ICJ ruling’s legal effect on U.S. courts remains uncertain, it clearly impacts on national and world opinion regarding the U.S. government’s commitment to international law. On April 19, The New York Times strongly editorialized that “Washington ought to call off any executions of these 51 Mexicans. The alternative would poison relations with Mexico, send a signal that the United States doesn’t take its international obligations seriously and – worst of all – imperil Americans overseas.” Jamie Fellner, U.S. program director for Human Rights Watch, agrees. “The United States cannot go to the other countries and say ‘consular access’ if it is not complying with the treaty here at home.”

Already, the U.S. has faced extensive international criticism of its death penalty. Allies in the fight against terrorism that are member nations of the European Union are barred from extraditing suspects to stand trial in the U.S. if they will face the death penalty.

On the heels of the ICJ ruling, Amnesty International released a report demonstrating that the U.S., China, Iran, and Vietnam are responsible for 84% of the world’s known executions.