Tag Archive | "Vienna Convention on Consular Relations"


Critical Analysis: Mexico Claims United States Executions Violate International Law

On Wednesday, January 22, 2014, Texas executed Edgar Arias Tamayo, a Mexican citizen convicted in 1994 for murdering a police officer.  Mexican diplomats were required to be notified of his arrest under the Vienna Convention on Consular Relations, but the Mexican consular did not receive notification, and Mr. Tamayo was never informed of his rights under the Convention.

The Mexican government claims that the execution violated international law.  Both the Obama Administration and the Bush Administration urged Texas to reconsider and allow Mr. Tamayo and similarly situated prisoners another hearing, stating that they feared repercussions for American citizens arrested abroad.  “In the past five years, Texas has executed two other Mexicans convicted of murder who raised similar claims.”


The ICJ has held that the U.S. violated its treaty obligations under the Vienna Convention by failing to allow Mexican citizens on death row to have access to their consulate after their arrest. Image Source: Wikimedia Commons

In 2008, Jose Ernesto Medellin was executed in Texas after being convicted for the rape and murder of two teenage girls.  “Medellin’s capital appeal was an unusual one that pitted President Bush against his home state in a dispute over federal authority, local sovereignty and foreign treaties.”  Medellin was not informed of his rights under the Vienna Convention, and did not receive the chance to meet with Mexico’s consular.  President Bush demanded that Texas allow a new hearing for Medellin in light of a 2004 decision handed down by the International Court of Justice (ICJ).  The ICJ ruled that the United States had violated its treaty obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, which spells out the rights of citizens detained in other countries. According to the ICJ, Medellin and 50 other Mexican citizens on death row in America were improperly denied access to their consulate after their arrest.

Medellin’s lawyers took the issue to the Supreme Court.  They argued that a bill was pending in the United States Congress that would give Medellin, and other Mexican citizens denied access to the consul, a new hearing, and, in light of the pending legislation, that the execution should be put off until the bill could be passed.  Some members of the Democratic Party “urged Texas Gov., Rick Perry, a Republican, to postpone executions ‘in order to provide Congress with the time needed to consider this situation.'”

However, the United States Supreme Court ruled that President Bush did not have the power to order Texas to give Medellin a new hearing.  The Court stated that the ICJ’s judgments could not be forced on individual states, and that the President did not have the authority to “establish binding rules of decision that pre-empt contrary state law.

Again, in 2011, another Mexican citizen, Humberto Leal Garcia Jr., who was denied access to the Mexican consulate after his arrest, was executed. The Obama Administration urged Texas to delay the execution citing United States foreign policy interests.  The United States Supreme Court refused to delay the execution, based on Garcia’s argument that legislation was pending that would allow federal courts to review cases such as Garcia’s.  Commenting on Congress’s lack of action on the issue, the Supreme Court reasoned “It has now been seven years since the ICJ ruling and three years since our decision in Medellín I … If a statute implementing [the ICJ decision] had genuinely been a priority for the political branches, it would have been enacted by now.”  Although four dissenting Justices agreed with the Solicitor General’s argument that Garcia’s execution “would place the United States in irreparable breach” of international law, Garcia was executed.

Congress has been on notice since 2008 that the Supreme Court will not intervene on behalf of foreign nationals denied their rights under the Vienna Convention until Congress enacts appropriate legislation. As evidenced by the execution of Edgar Tamayo Arias on Wednesday, January 22, 2014, Congress has yet to act in this urgent issue.  Meanwhile, the United States remains in violation of its international treaty obligations.  Congress should act quickly and with urgency to allow the United States to uphold its obligations under the Vienna Convention.

Lisa Browning is a 3L and the Training Editor on the Denver Journal of International Law & Policy. 

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Consular Duties
(SF Gate)

International Law Carries the Day in the Nevada Supreme Court

Earlier this month, the Nevada Supreme Court became only the second US court to recognize its consular obligations under international law articulated by the International Court of Justice.  Yes, that’s right; Nevada’s high court responded to the ICJ’s call in Avena and Other Mexican Nationals to review certain cases for prejudice stemming from violations of foreign nationals’ consular rights.  This excites me not only because I am an advocate for the progressive development of international law, which this certainly is, but also because I am a Native Nevadan.  It’s always nice to see when my state gets it right.


After a swath of Mexican nationals were sentenced to death in the United States, Mexico brought a claim to the International Court of Justice (ICJ) in 2003 contending that many of these individuals had been sentenced without having been informed of their right to meet with a Mexican consular official.  Having the opportunity to meet with a consular official after being accused of a serious crime in a foreign country is a vital right enshrined in Article 36 of the Vienna Convention on Consular Rights.  This right is so important because consular officials can help a national bridge cultural and language misunderstandings, as well as by conducting their own investigations and, if necessary, intervening in a national’s case.

United States Responds.

Consular Duties
(SF Gate)

Responding to the ICJ’s 2004 ruling, the United States did two things.1  First, in late February 2005, President George W. Bush sent a memo to Attorney General Alberto Gonzales stating that the US would discharge its international obligations by having state courts review the cases based on comity.  Ignoring for the moment that the President cannot require state courts to do this, this is not exactly what the ICJ required.  In this regard, comity merely gives effect to another court’s decision based on one court’s discretionary determination that another court’s decision is worthy of enforcement.  Under a comity analysis, a state court could decline to reexamine these cases.  The ICJ, however, expected action.

Second, in early March 2005, the Bush Administration issued a statement saying that the US remained committed to international law and reaffirmed that state courts will review the disputed cases, but that the US resents the international court stepping in to review domestic criminal matters.  Consequently, the US withdrew from the Vienna Convention on Consular Relations’ Optional Protocol on Dispute Resolution, meaning that the ICJ no longer has compulsory jurisdiction over consular disputes involving the United States.

In 2008, the US Supreme Court weighed in on the President’s memo and American consular obligations in light of the ICJ’s judgment.  In Medellín v. Texas, the Court concluded that the ICJ did not preempt state procedural rules barring prisoners from raising consular rights violations in a habeas corpus petition.2  Justice Stevens, however, in his concurrence chastised Texas for embroiling the US in diplomatic controversy and encouraged states to voluntarily comply with the ICJ ruling.3  Consequently, relief for the 51 Mexican nationals on death row depends on the discretion of state courts.  For most of the 51, this is not a bright prospect.

Back to Nevada.  

Nevada Supreme Court
(Wild Nature)

The facts of this case are brutal: Carlos Gutierrez subjected his toddler daughter to a pattern of abuse that culminated in her death and hid her body in a remote valley.  He was charged with first degree murder and pleaded no contest.  A three-judge panel subsequently sentenced him to death.  Interestingly, his first appeal did not mention his consular rights.4

Mr. Gutierrez, however, is one of the named Mexican nationals on death row that Mexico identified in the Avena case.  In light of this, the Nevada Supreme Court reconsidered his case.  In the opinion, the Court agreed with Justice Stevens’ concurrence and reviewed Mr. Gutierrez’ case for potential prejudice.  Indeed, the Court concluded there very likely was prejudice.  First, the nearest Mexican Consulate asserted that, had they been notified, they would have helped Gutierrez with legal and language barriers.  Second, and most telling given that Mr. Gutierrez was relatively uneducated and spoke little English, the original trial was marred by allegations of procedural problems.  The official translator later admitted to lying about his education and certification, and there were concerns about the accuracy of his translation.  Ultimately, the Court concluded it did not have sufficient information to determine prejudice and remanded to the trial court for an evidentiary hearing.

Although the Nevada Supreme Court ultimately reached the right result, it did so in a less robust way than I would have liked.  The US Supreme Court acknowledged that “International law is part of [United States] law.”5  The Supremacy Clause itself incorporates treaties into federal law, which in turn supersedes conflicting state laws6 and US law are presumed to comply with international law.7  Therefore, the ICJ’s interpretation of the Vienna Consular Convention is binding on American courts and should not have wrestled its way through the Executive bureaucracy and the federal courts.  But unfortunately we don’t live in this ideal and automatic world.  Instead of complaining, however, I shall be content knowing that my state had a part in progressing the primacy of international law.

  1. See U.S. Strategy for Responding to ICJ’s Avena Decision, 99 Am. J. Int’l L. 489 (2005).
  2. 552 U.S. 491, 498-99 (2008).
  3. Id. at 536 (Stevens, J., concurring).
  4. Gutierrez v. Nevada, 920 P.2d 987 (Nev. 1996).
  5. Paquete Habana, 175 U.S. 677, 700 (1900).
  6. U.S. Const. art. VI, cl. 2; United States v. Pink, 315 U.S. 203, 230 (1945).
  7. See Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.).

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University of Denver Sturm College of Law