Friday, December 13, 2013

The Vienna Convention & The US Death Penalty

The Vienna Convention & The US Death Penalty
Dudley Sharp

Published July 4, 2011

Leal & Vienna Convention


In June 2006, the United States Supreme Court ruled that foreign nationals who were not notified of their right to consular notification and access after an arrest may not use the treaty violation to suppress evidence obtained in police interrogation or belatedly raise legal challenges after trial (Sanchez-Llamas v. Oregon.).

In March 2008, the Supreme Court further ruled that the decision of the International Court of Justice (ICJ) directing the United States to give "review and reconsideration" to the cases of 51 Mexican convicts on death row WAS NOT A BINDING DOMESTIC LAW (my emphasis) and therefore could not be used to overcome state procedural default rules that barred further post-conviction challenges (MedellĂ­n v. Texas).


1. The violation of the VC is that the US did not inform arrested foreign nationals of their right to contact their own consulate, either by themselves or that the taking authorities contact their consulate.

The police/taking authorities didn't say:

"You have the right to contact your consulate, if you want to." (see footnote 2, below, Article 36. 1. b., VC)

That's it.

2. It is important to point out that:

a. all detainees could have contacted their consulates whenever they wanted to, absent that notification and b. all 51 detainees had attorneys who knew they could contact the consular offices, at any time, had they believed such contact could have been helpful. They didn't.

c. No one prevented anyone from contacting their consulate and no taking authority refused to contact the consulate for them.

The main issue of this International Court of Justice (ICJ) case (2) was not the violation of notification, which both parties had conceded to, but one of the remedy for such violation.

In the US, hearings are based upon meeting a threshold of evidence which can support the call for a hearing. If that threshold is not met, then the appellate courts will rule against a hearing.

Overwhelmingly, the VC issues have been reviewed by courts and the claims have been dismissed.

They have been barred because of time limitations on originating the appeal or not preserving it at trial, properly, or that the VC issue resulted in harmless error, meaning that neither the sentence nor the verdict would have changed, had the VC been properly administered.

Many appellate claims for US citizens are denied in US courts for the exact same reasons.

Paragraph 2, Article 36 , VC states:

"2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. "

The appeals, as reviewed above, have, already, fulfilled this requirement or will fulfill it. The notification issued had been reviewed by both state and federal courts.

Reuters: "The United States accepts that the original 2004 ruling places on it a binding legal obligation, said John Bellinger, legal adviser at the U.S. Department of State, adding it was disappointing the court had held that Medellin's execution violated international law. 'Mr. Medellin has had numerous reviews of his case ... It is worth noting that his absence of consular notification was in fact specifically reviewed by a number of state and federal courts,' Bellinger said. U.S. execution breached international law: World Court, BY NICLAS MIKA, Reuters, THE HAGUE Mon Jan 19, 2009 12:17pm EST

In the overwhelming majority of the 51 Mexican detainee cases, there is little doubt that the detainees received super due process and other protections within their cases.

Looking specifically at the dates of when these 51 detainees were originally arrested, and the history of Mexico's interest in Mexican nationals arrested in the US at such times, there is very little or no supportive evidence that Mexico would have provided any additional assistance, at all, or any additional assistance which would have impacted the end result in these cases, had their consulates been notified at that time.


1. The ICJ decision violates the specific, unequivocal directive of the VC that the Convention states:

"Realizing that the purpose of such privileges and immunities IS NOT TO BENEFIT INDIVIDUALS (my emphasis) but to ensure the efficient performance of functions by consular posts on behalf of their respective States" (Introduction, paragraph 6, VC)

2. This directive is given specific, additional support, within the subject Article 36 of the VC: within the opening and dominant directive of Paragraph 1, VC:
"With a view to facilitating the exercise of consular functions relating to nationals of the sending State"

3. The ICJ completely dismisses this unequivocal directive of the VC. Put bluntly, the ICJ has no respect for the spirit and specific directives of the VC, in this regard. Had the ICJ honored the specific directives of the VC, this case would have been dismissed.

From the ICJ decision, Press Release (1)

The ICJ: " - finds by fourteen votes to one that the appropriate reparation in this case consists in the obligation of the United States of America to provide, BY MEANS OF ITS OWN CHOOSING (my emphasis) , review and reconsideration of the convictions and sentences of the Mexican nationals referred to . . .; and

"- unanimously finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall provide, BY MEANS OF ITS OWN CHOOSING (my emphasis), 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, taking account of paragraphs 138 to 141 of this Judgment."

And the US chose to provide super due process and no more, to these horrid murderers.


1) The International Court of Justice's (ICJ) decision. Avena and Other Mexican Nationals (Mexico v. United States of America), Press Release 2004/16, March 31, 2004,

2) The Vienna Convention on Consular Relations, 1963 (VC),