In 2005 I
learned of an International Court of Justice decision holding that the United
States had failed to abide by terms of the decades old Optional Protocol to
the Vienna Convention on Consular Relations. It piqued my interest to the point
that I included the issue in an unpublished manuscript I was writing at the
time. The following is the manner in which I addressed the issue.
“Let me tell
you,” Officer Smith continued, in a calm, pleasant tone. There are lawyers,
public defenders that hang out here in the station from time to time. They’re
here to protect the rights of criminals—protect your rights. When I was out
there trying to contact your boss I mentioned to one of them that you were here.
I can have him come in and explain what’s going on. Tell you what you should
do. You want me to send him in?”“How will I know he’s a defender?”
“I offer to get you a free lawyer, and what do you do, you act like I’m lying. You’re really starting to piss me off—you want me to see if he’ll come in here and explain everything to you—help you figure out what you need to do—or not?”
“I guess,” Ernesto answered. “If I can’t talk to my boss. If he isn’t where I can talk to him—since I don’t know what to do.”
Smith left the room and returned a short time later with a man dressed in street clothes.
“I was lucky to find a lawyer that can speak Spanish. Mr. Escudero, this is Ernesto Garza. I’m going to be charging him with Murder One. I appreciate you offering to help, let me know when you’re through,” he said as he was closing the door behind him. “Mr. Garza,” Escudero said, speaking in Spanish, “I’m Rey Escudero, an attorney with the Public Defender’s Office. We provide legal services to people like you, people who can’t afford to hire a lawyer. If you want, I can listen to what you have to say about what happened and advise you what to do. Do you have any questions before I explain what is happening?”
“Yes. I guess. I’ve never been in trouble. I don’t know nothing about this.”
“Well, first,” Escudero said, “why don’t you tell me what happened?”
“I was at work. I work at SouthSide Cleaners. My boss, Jack, Mr. Straight, he told me Maria, my sister Maria, had called that my daughter, Tina, was very sick. He told me I needed to go home. When I got home I went to Tina and she was sicker than I have ever seen her. Maria told me she had called the clinic, La Clinica, for a doctor and after that, a doctor came.”
“Before we go further, where you from—Mexico?”
“Yes.”
“Do you have papers to be here?”
“Yes. I am
legal.”
“Okay. Did the
man say, did he tell you he was a doctor?”
“I don’t
remember for sure, I think he did. Maybe it was Maria that told me. You need to
ask her.”
“Go ahead,”
Escudero said.“He came into the room where I was, where Tina was. He checked her a little and then he told me he wasn’t going to do anything and went to the kitchen. I begged him and all he did was look around. He started to leave, like he wasn’t going to help, like Tina wasn’t worth it.
I begged him to
help—to do something—to use what he had in his bag. But he just said he needed
to make a call.
“Before I knew
it he was falling to the floor and I asked Maria what happened. She said I had got
a knife from the table and hit him with it. That’s what she told me.”
“Sounds like you
got mad and stabbed him because you thought he didn’t care about your daughter?”
“I must have—but I don’t remember hitting him with the knife.”
“From what you
say, Ernesto, my best advice is—you should tell the officer everything—like you
just told me. Because. Even though it might be murder, it doesn’t sound like it
would be—you probably won’t have to worry about the death penalty—or spending
the rest of your life in prison. You need to tell him what you told me?
“I don’t know.
But—since you’re a lawyer, and you tell me I should—I guess I should.”
“You’ll need to
sign some papers. A paper saying you agree to answer questions and one saying
you don’t want to talk with anyone from the Mexican Consulate. It’s better not
to talk to them; they can make it worse for you. Here—sign this one. It says
you don’t want to talk with anyone from the Consulado, Mexican Consulate.
After Ernesto
signed the papers and Escudero had left the room, Ernesto heard an announcement
over the loudspeaker: “Detective Escudero, Rey Escudero, you have a call on
line three.”
I have followed
the issue over the years and find it disheartening how the United States ultimately
approached the issue. The following are scholarly recitations of the matter as
it unfolded.
THE MEDELLIN CASE - ACCESS TO A CONSULATE AFTER
AN ARREST
The International Court
of Justice, the United Nations’ highest, has unanimously ruled that the United
States defied its order last year when Texas authorities executed Jose
Medellin, a Mexican convicted of rape and murder. The court said the U.S.
remained obliged to review the cases of about 50 other Mexicans on death row
because they were denied access to their consulate after their arrest. The case
hinges on the spotty compliance by U.S. state and local authorities with the
Vienna Convention on Consular Relations, which provides that arrested aliens,
have access to diplomats from their home country and which the U.S. ratified in
1969.
Former President George
W. Bush directed the states to comply with the world court's ruling, but Texas
argued that neither that court nor the president could override the decisions
of its state courts. Last March the U.S. Supreme Court ruled 6-3 that the
president lacked authority to intervene in state criminal proceedings. AARO
joined an amicus curiae brief in that case, pointing out that U.S. citizens
abroad could be jeopardized if other countries also refused them access to
their consular officials.
AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED
STATES OF AMERICA
In January 2003, Mexico instituted proceedings in the
International Court of Justice ("ICJ") against the United States,
alleging violations of the Vienna Convention on Consular Relations
("Vienna Convention"). The Vienna Convention provides that
foreign nationals must be informed, without delay, of their right to
communicate with their consulate when they are detained by law enforcement
officials. It also requires law enforcement officials to notify the appropriate
consulate if the foreign national so requests. In Avena, Mexico argued
that the United States had failed to comply with the Vienna Convention in 54
separate cases involving Mexican nationals who had been convicted and sentenced
to death. On March 31, 2004, the ICJ issued its ruling in the case, holding
that the United States had violated the Vienna Convention in most of those
cases and calling for the United States to provide review and reconsideration
of the convictions and sentences in the underlying criminal proceedings.
I. Background
For decades, Mexico has provided consular assistance to its
nationals traveling in the United States. In 1942, Mexico and the United States
entered into a bilateral consular agreement "because of their geographic
proximity and the frequent inter-state travel of their respective
citizens." In 1965, Mexico ratified the Vienna
Convention in order to supplement its bilateral consular agreements and to
provide additional protection to Mexican nationals traveling abroad. In 1986,
Mexico developed the Program of Legal Consultation and Defense for Mexicans
Abroad in order to improve the work of its consular officials in representing
the interests of Mexican nationals, particularly in legal proceedings. In
2000, Mexico established the Mexican Capital Legal Assistance Program in the
United States. The program works with consular officials
and defense counsel in the United States to promote awareness and compliance
with international norms, including the Vienna Convention. Through the program,
Mexico has intervened to protect the rights of Mexican nationals in over 100
capital cases. In some of these cases, Mexican
representatives assisted defense counsel in obtaining evidence or presenting
arguments to the courts. In other cases, Mexico submitted diplomatic protests
or requests for clemency to state and federal officials. To enhance these
programs, Mexico adopted legislation and corresponding regulations in 2002 that
"establish a comprehensive legal framework pursuant to which Mexican
consular officials must intervene directly to protect the rights of Mexican
nationals."
Despite these actions, Mexico's efforts to promote compliance
with the Vienna Convention in the United States have met with limited success.
State and federal courts have declined to overturn convictions or suppress
evidence when violations of the Vienna Convention have occurred, even in
capital cases.
II. Mexico's
Application to the ICJ
On January 9, 2003, Mexico filed an application instituting
proceedings against the United States in the International Court of Justice.
Mexico's application based the jurisdiction of the Court on the Optional
Protocol Concerning the Compulsory Settlement of Disputes ("Optional
Protocol") that accompanies the Vienna Convention and that both countries
have accepted.
The Mexican application alleged that 54 Mexican nationals had
been "arrested, detained, tried, convicted, and sentenced to death"
in proceedings in which the competent authorities failed to comply with their
obligations under the Vienna Convention. These violations "prevented Mexico
from exercising its rights and performing its consular functions pursuant to
Articles 5 and 36 . . . of the Vienna Convention." As a result of these violations, Mexico
argued that it "had suffered injuries in its own rights and in the form of
injuries to its nationals."
In a separate request for the indication of provisional measures
of protection, Mexico emphasized that three of its nationals-César Roberto
Fierro Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera faced
executions in the next six months. The request also noted that other Mexican
nationals could soon face execution in the United States. Thus, the request for
provisional measures sought to ensure that no Mexican national would be
executed until the Court determined Mexico's claims on the merits.
III. The ICJ's
Provisional Measures Order
On February 5, 2003, the Court announced its unanimous decision
on the request for the indication of provisional measures. Of the 54 named
individuals, the Court found that only three of them did, in fact, face the
risk of execution in the coming weeks or months. Moreover, these executions
"would cause irreparable prejudice to any rights that may subsequently be
adjudged by the Court to belong to Mexico. . . ." Accordingly, the Court issued the
following order: "[t]he United States of America shall take all measures
necessary to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno
Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment
in these proceedings . . . ."
IV. The ICJ's Judgment
in Avena
On March 31, 2004, the Court issued its judgment on the merits.
As a preliminary matter, the Court dismissed all the jurisdictional and
admissibility challenges raised by the United States. The Court found that the
jurisdictional challenges were more appropriately addressed at the merits
stage. Several admissibility challenges were also dismissed for this reason.
The remaining admissibility challenges were dismissed on various grounds. For
example, the Court found that exhaustion of local remedies within the United
States was not necessary because Mexico was requesting the Court to rule on the
violation of rights that it claims to have suffered both directly and through
the violation of individual rights conferred on Mexican nationals. In addition,
the Court held that Mexico had not waived its right to bring the case before
the ICJ, even if it had delayed in doing so. "[O]nly a much more prolonged
and consistent inaction on the part of Mexico . . . might be interpreted as implying
such a waiver." The Court also rejected the claim that
Mexico's own alleged failure to comply with the Vienna Convention precluded its
action against the United States. The Court found that the Vienna Convention
was designed to facilitate consular practice and promote friendly relations
among member states. "Even if it were shown, therefore, that Mexico's
practice as regards the application of Article 36 was not beyond reproach, this
would not constitute a ground of objection to the admissibility of Mexico's
claim."
Having resolved the jurisdictional and admissibility challenges,
the Court then considered the merits of Mexico's claim. First, the Court found
that the United States had breached its obligations under the Vienna Convention
in the following manner:
(1) by failing to inform, without delay, 51 Mexican nationals of
their rights under the Vienna Convention;
(2) by failing to notify, without delay, the appropriate Mexican consular post of the detention of 49 Mexican nationals, thereby depriving Mexico of the right to render assistance to its nationals;
(3) by depriving Mexico of the right to communicate with, and have access to, 49 Mexican nationals in a timely fashion;
(4) by depriving Mexico of the right to arrange for legal representation of 34 Mexican nationals in a timely fashion; and
(5) by not permitting the review and reconsideration, in light of the rights set forth in the Vienna Convention, of the convictions and sentences of three Mexican nationals currently awaiting execution.
(2) by failing to notify, without delay, the appropriate Mexican consular post of the detention of 49 Mexican nationals, thereby depriving Mexico of the right to render assistance to its nationals;
(3) by depriving Mexico of the right to communicate with, and have access to, 49 Mexican nationals in a timely fashion;
(4) by depriving Mexico of the right to arrange for legal representation of 34 Mexican nationals in a timely fashion; and
(5) by not permitting the review and reconsideration, in light of the rights set forth in the Vienna Convention, of the convictions and sentences of three Mexican nationals currently awaiting execution.
To remedy these violations, 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." In order to satisfy the Court's judgment,
such review and reconsideration must take into account the rights set forth in
Article 36 as well as the relevant portions of the Court's opinion on this
issue. The Court indicated that review and reconsideration must be effective
and must provide "a procedure which guarantees that full weight is given
to the violation of the rights set forth in the Vienna Convention, whatever may
be the actual outcome of such review and reconsideration." Thus,
the procedural default rule cannot be used to preclude a defendant from raising
a Vienna Convention violation. In addition, the Court stated that review
and reconsideration must occur "with a view to ascertaining whether in
each case the violation of Article 36 committed by the competent authorities
caused actual prejudice to the defendant in the process of administration of
criminal justice." Thus, the Court declined Mexico's request
to find that a Vienna Convention violation must automatically result in the
partial or total annulment of conviction or sentence.
The Court also averred that it was not determining the
correctness of any conviction or sentence issued by a U.S. court. It continued:The question of whether the violations of Article 36, paragraph
1, are to be regarded as having, in the causal sequence of events, ultimately
led to convictions and severe penalties is an integral part of criminal
proceedings before the courts of the United States and is for them to determine
in the process of review and reconsideration. In so doing, it is for the courts
of the United States to examine the facts, and in particular the prejudice and
its causes, taking account of the violation of the rights set forth in the
Convention.
Finally, the Court indicated that such review and
reconsideration must apply to both the conviction and sentence. It must also
take place within the judicial process and not through the clemency process.
"[T]he clemency process as currently practiced within the United States
criminal justice system . . . is not sufficient in itself to serve as an
appropriate means of 'review and reconsideration."
The Court also focused on prospective relief. First, the Court
acknowledged the considerable efforts of the United States to ensure, in good
faith, that law enforcement authorities complied with the Vienna Convention. These
efforts included extensive outreach efforts by the U.S. State Department to
inform state and local law enforcement officials about the Vienna Convention
and its attendant obligations. Thus, the Court found that the U.S. commitment
to ensure implementation of specific measures in performance of its obligations
under Article 36 constituted a sufficient guarantee and assurance of
non-repetition. Second, the Court held that any failure of the United States to
inform Mexican nationals of their right to contact their consulate in future
cases where Mexican nationals are sentenced to severe penalties would raise a
new set of obligations. In these cases, the United States "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. . . ." Finally, the Court indicated that its
analysis of the Vienna Convention should not be limited to Mexican nationals.
According to the Court, "the fact that in this case the Court's ruling has
concerned only Mexican nationals cannot be taken to imply that the conclusions
reached by it in the present Judgment do not apply to other foreign nationals
finding themselves in similar situations in the United States."
V. Conclusion
For the second time in three years, the International Court of
Justice has found the United States to have violated the Vienna Convention on
Consular Relations. But the Avena decision is different from the earlier
LaGrand decision in several respects.
In Avena, the Court indicated that law enforcement
officials must inform a foreign national of his or her consular rights once
there are grounds to believe that the person is a foreign national. Indeed, the
Court suggested that this notice could be issued along with the reading of Miranda
rights.
The Court also clarified the meaning of review and
reconsideration, a remedy first recognized in LaGrand. The Court held
that review and reconsideration requires judicial review and that the clemency
process alone is insufficient. Furthermore, the Court held that review and
reconsideration requires a determination of whether the Vienna Convention
violations caused actual prejudice to the defendant. Such determinations can
only be made on a case-by-case basis. While ICJ decisions have no binding force
except between the parties and in respect to that particular case, the
Court made clear that its analysis in Avena was not limited to Mexican
nationals and that it applies with equal rigor to cases involving other foreign
nationals.
The influence of the Avena decision
will soon be measured in the United States. The State of Oklahoma has scheduled
the execution of Osvaldo Torres, one of the Mexican nationals referenced in Avena,
for May 18, 2004.
Consular Notification and the Death Penalty: The ICJ's Judgment in
Avena
William
J. Aceves April 2004 http://www.asil.org/insigh130.cfm)
A
JAILHOUSE LAWYER’S MANUAL
IMMIGRATION
AND CONSULAR ACCESS
SUPPLEMENT
Chapter
2, Footnote 25:
U.S. Secretary of State
Condoleeza Rice sent a letter to the U.N. Secretary General Kofi Annan,
informing him that the United States “hereby withdraws” from the Optional
Protocol. See Charles Lane, U.S. Quits Pact Used in Capital Cases, Wash. Post,
Mar. 10, 2005, at A01….See Frederic L. Kirgis, Addendum to ASIL Insight,
President Bush’s Determination Regarding Mexican Nationals and Consular
Convention Rights, Am. Soc’y of Int’l L., Mar. 2005.
This Chapter
was revised by Manfred Gabriel based in part on a previous version written by
Lara A. Ballard.
THE
SECRETARY OF STATE
WASHINGTON
March
1, 2005
Dear Mr. Secretary-General:
I have the honor on behalf of the
Government of the United States of America to refer to the Optional
Protocol to the Vienna Convention on Consular Relations Concerning the
Compulsory Settlement of Disputes, done at Vienna April 24, 1963.*
This letter constitutes
notification by the United States of America that it hereby withdraws from the
aforesaid Protocol. As a consequence of this withdrawal, the United
States will no longer recognize the jurisdiction of the International Court of
Justice reflected in that Protocol.
Sincerely,
Condoleezza Rice
His Excellency
Kofi A. Annan,
Secretary-General of the United Nations,
New York.
Unfortunately,
from time to time, there exist stark reminders that treaties are not always
shown the respect due “the law of the land.” This is clearly one of them.
In this instance we learn that a
Secretary of State took it upon herself to alter the United States acceptance of
a decade old treaty by simply drafting a letter to the Secretary-General of the
United Nations: altering our commitment to a treaty that had been confirmed by
the Senate. Several questions arise from this act. First, how can a Secretary of
State nullify our obligation to a treaty that has been accepted by the Senate?
Second, if we withdraw from the Protocol what is to keep other countries from
withdrawing and thus refusing to allow our consulates around the world to visit
Americans who are being held for crimes that may not have occurred, or Americans
who have been falsely charged. Shouldn't our government be cognizant of the fact
that when we take unilateral action regarding treaties we are inviting other
countries to make short shrift of their obligations.
It would seem that no consideration went into unintended
and detrimental consequences may occur because of our omnipotence: shouldn't we
consider that it is not wise to do unto others that which we would not wish to
be done to us?
This is a very important issue, one which we should
correct immediately. If Secretary Rice was acting within her power then surely
the current administration could undo what she did with a simple letter from
Secretary Clinton to the current Secretary-General reestablishing our obligation
to abide by the Protocol.
