International Law and Opinion
International Law and Opinion
The United States is one of sixty-nine countries in the world that retain the use of capital punishment. Over 120 countries have abolished the death penalty completely or in practice. According to Amnesty International, 94% of all recorded executions in 2005 occurred in China, Iran, Saudia Arabia, and the United States.
International law and opinion can be factors when weighing the death penalty. Extradition treaties and the use of international tribunals can affect both an individual defendant's case and international relations.
Juan Garza, a U.S. citizen, was initially indicted by a federal grand jury on non-capital federal drug trafficking charges. He fled to Mexico after U.S. Custom agents raided his Brownsville home in 1992. Garza was arrested in Mexico a few months later, and he was subsequently extradited to the United States on the drug charges. Upon arrival in the U.S., Customs agents arrested Garza. Two months later, a federal grand jury issued a new indictment, this time for three counts of murder and other charges.
Garza’s attorneys challenged the way in which Garza was extradited from Mexico to the United States. Mexico does not practice capital punishment, and a treaty between the U.S. and Mexico allows Mexico to refuse to extradite an individual who is facing charges for a crime that may carry the death penalty. Garza’s attorneys argued that the U.S. chose not to charge Garza with a capital crime until he was extradited to the U.S. for drug charges. (See Clemency Petition). Had the U.S. initially charged Garza with potentially capital crimes, it is unlikely Mexico would have extradited him without assurances from the U.S. that he would not face the death penalty.
Violations of International Agreements
After Juan Garza’s U.S. appeals were denied, his lawyers sought review by an international tribunal, the Inter-American Commission on Human Rights (IACHR or “the Commission”). They petitioned the IACHR, asserting that Garza’s death sentence violated Articles I (Right to Life), XVIII (Right to a Fair Trial), and XXVI (Right to Due Process of Law) of the American Declaration of the Rights and Duties of Man.
The U.S. government, in its response to Garza’s petition, asserted that neither Garza’s constitutional rights nor the rights set forth in the American Declaration had been violated during his trial or sentence. The U.S. government also noted that the findings of the IACHR are “non-binding recommendations” with which the U.S. is not obligated to comply. Shortly thereafter, Garza submitted a request to the Commission to raise additional matters concerning the United States Department of Justice’s (DOJ) 2000 report on racial and geographical bias in the federal death penalty. (See Racial and Geographical Bias in the Federal Death Penalty).
In early 2001 the Commission issued a final decision in favor of Garza, finding that the inclusion of the four unadjudicated foreign murders into the penalty phase of the trial were violations of Garza’s right to a fair trial and to due process under Articles XVIII and XXVI of the American Declaration. In addition, the Commission found that Garza’s death sentence was arbitrary and capricious under Article I of the American Declaration and executing him would be a deliberate violation of his right to life under Article I. Garza’s attorneys used this opinion as a basis for further post-conviction proceedings, asking for relief on the ground that Garza’s rights under the American Declaration had been violated when evidence of the four unadjudicated murders committed in Mexico was introduced at his sentencing hearing. The petition also argued that the Commission’s findings were binding on the United States under the Organization of American States (OAS) Charter because the U.S. is a member of the OAS. However, courts in the United States have frequently held (including in the case of Juan Garza) that the U.S. is not legally bound by the American Declaration, or by the Commission’s decisions, and opinions interpreting the Declaration because the American Declaration itself is not officially designated as a treaty.
The majority of the countries in the world have signed bilateral extradition treaties with most other countries. The United States has extradition treaties with over 100 nations. An extradition treaty between two countries is often required for extradition to occur between them.
Countries that have abandoned the practice of the death penalty usually will not permit an alleged criminal to be extradited to countries that still practice the death penalty unless they are assured that the defendant will not face this punishment. Mexico, Canada, and the countries of the European Union, for example, will not extradite to the U.S a person charged with a capital offense without assurances the death penalty will not be sought.
The United States is unique in that most capital crimes are tried at the state level, yet extradition treaties and processes are handled at the federal level. This has the potential for creating tensions between state and federal law enforcement and diplomatic officials.
The Organization of American States (OAS)
The Organization of American States was created at the Ninth International Conference of American States in Bogotá, Colombia, in 1948. Twenty-one countries from North and South America have signed the OAS Charter, including the United States in 1951. A main concern of the OAS is the respect of human rights by signatory countries. The United States continues to take an active role in the OAS and has a Permanent Representative assigned to the forum.
The Inter-American Commission on Human Rights (IACHR)
The Inter-American Commission on Human Rights, an autonomous entity of the OAS, was created in 1959 to protect human rights. In 1965, the IACHR was permitted to examine submissions and requests for information from members of the OAS, as well as make recommendations on these submissions. The IACHR is not a court of law.
The American Declaration of the Rights and Duties of Man
In addition to the creation of the OAS, the American Declaration of the Rights and Duties of Man was adopted at the Ninth International Conference of American States. The American Declaration, as it is commonly known, was one of the first general tools outlining human rights, predating the UN’s Universal Declaration of Human Rights. The American Declaration is not a binding legal document. Since its creation, the American Declaration has mostly been superseded by the American Convention on Human Rights (1969), a document that the U.S. has signed, but not yet ratified. The Inter-American Commission on Human Rights invokes the terms of the American Declaration in its opinions in cases where the country in question has not yet ratified the American Convention on Human Rights.
Other aspects of international law may affect the United States’ use of the death penalty. Although issues raised by the Vienna Convention on Consular Relations, for example, did not arise in Juan Garza’s case (because he was a U.S. national), such disputes affect the relations between the U.S. and other countries and may be fertile areas for research and discussion.
The Vienna Convention on Consular Relations and the International Court of Justice
The Vienna Convention on Consular Relations (VCCR), a treaty promulgated by the United Nations in 1963, outlines the legal rights and duties of signatory countries (or “states”) to foreign nationals who are arrested or detained in their country. Article 36 of the VCCR requires a state to notify “without delay” the foreign nationals whom they are arresting of their right to have their embassy or consulate informed of their arrest. In many countries, both the home country of the foreign national and the country in which he or she is arrested must be signatories of the VCCR for it to apply.
In addition to the VCCR, there is the “Optional Protocol Concerning the Compulsory Settlement of Disputes.” The Optional Protocol allows states to go to the International Court of Justice when one of their foreign nationals is imprisoned in a state that is a signatory to the VCCR and is denied access to their consular officials. The United States ratified both the VCCR and the Optional Protocol in 1969. However, while remaining a party to the treaty, the U.S. withdrew from the Optional Protocol in 2005 after the International Court of Justice’s Avena Decision (see below). Mexico remains a full party to the VCCR and the Optional Protocol.
The Avena Decision
In early 2003, Mexico brought claims against the United States (Mexico v. The United States) in the International Court of Justice (ICJ), stating that the U.S. had violated the Vienna Convention rights of 54 Mexican citizens accused of crimes and sentenced to death in the United States. The United States, according to Mexico, failed to inform the accused Mexican citizens of their right to notify their embassy and obtain consular relief in a timely fashion.
A year later, the ICJ decided the Avena Case in favor of Mexico, stating that advisement of consular rights "without delay" means "a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national."
As a remedy, the ICJ ordered the U.S. to review the convictions and sentences of most of the 54 Mexicans who were party to the Avena decision. This did not mean that the convictions in cases in which the Mexican citizens’ VCCR rights were violated would be automatically overturned. Typically, the decisions of the ICJ apply only to petitioning parties regarding their cases. The ICJ, however, did assert that theAvena decision was not limited to Mexican nationals in the United States, but applies to similar cases in other VCCR-participating countries as well.
U.S. Supreme Court Cases and the Rights of Foreign Nationals
International influence on the U.S. death penalty drew attention in the late 1990s and early 2000s when numerous objections were raised over the legal treatment and executions of some foreign nationals. The U.S. allegedly had been disregarding the provisions of the Vienna Convention on Consular Relations by failing to inform defendants of their right to confer with their respective consulates. Some of these defendants had been sentenced to death.
The issue of VCCR violations in the U.S. culminated with the scheduled execution of Paraguay citizen Angel Breard in Virginia in 1998. Paraguay tried to intervene on Breard’s behalf in the Virginia courts, in federal court, and with the Governor of Virginia, but was ultimately unsuccessful. Paraguay then appealed to the International Court of Justice (ICJ) and received an order for a stay of execution. The country brought this order to the U.S. Supreme Court. However, the case was dismissed, largely on procedural grounds, and the execution proceeded.
Germany also used the ICJ to attempt to stop the execution of two of its citizens, Karl and Walter LaGrand, who were also not informed of their consular rights. The ICJ called for a stay of execution, but the United States rejected the order. Karl and Walter LaGrand were executed in 1999, and Germany continued to pursue the matter in the ICJ after the executions. Germany eventually prevailed in an ICJ ruling holding that the U.S. was in violation of the VCCR.
In an effort to inform and assist law enforcement agencies in following VCCR procedures, the State Department now distributes summaries,in a variety of languages, of the information that police should give to foreign nationals.
Medellin v. Dretke
As described in the Avena proceedings, Mexico also took claims of VCCR violations against the United States to the ICJ. One of the death row inmates whose cases were considered by the ICJ was Jose Medellin (Medellin v. Dretke). Medellin is a Mexican citizen currently on death row in Texas. After the ICJ ruled that cases such as his should be reviewed by the U.S. courts, Medellin's attorneys took appeals all the way to the U.S. Supreme Court in 2005 to secure this review.
After the Supreme Court agreed to hear the case but before oral argument, President Bush issued an Executive Order directing the state courts to abide by the ICJ ruling and review the cases of Medellin and the other Mexicans.
The Supreme Court dismissed the case, citing the President's Executive Order as the chief reason and reserved the right to hear a future appeal once the case had run its course in state court. Texas courts refused to review Medellin’s case, saying that the President lacked the power to order a review. The U.S. Supreme Court agreed to re-open Medellin’s appeal.
Questions for Further Analysis
Does the United States’ use of the death penalty affect its image abroad? How?
Why do you think the United States retains the use of the death penalty when most other industrialized nations have abolished it?
How should international opinion or consensus affect U.S. Supreme Court decisions? What has the court said about such opinion? How do international treaties that the U.S. has ratified affect state courts and criminal justice procedures? What affect do you think they should have?
How does the VCCR affect U.S. citizens abroad? If the U.S. does not abide by this treaty, what are the ramifications?