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.”
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.