Article: The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penality Cases

Since the Supreme Court reinstated the death penalty in 1976,[1] the United States has executed twenty-eight foreign nationals from fifteen different countries.[2]  Most of those foreign nationals were never informed of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations,[3] a treaty the United States ratified in 1969.[4]  Violations of Article 36 in capital cases have caused consternation in foreign capitals and endless litigation in domestic courts and international tribunals.  Mexico, which has the largest number of foreign nationals on death row,[5] established the Mexican Capital Legal Assistance Program in 2000 to assist its nationals facing the death penalty and to ensure that Vienna Convention claims were aggressively litigated.[6]  Several foreign governments have filed briefs in state and federal courts describing the nature of the assistance they could have provided if their nationals had been promptly notified of their consular rights.[7]  In dozens of cases, appellate lawyers have argued that consular assistance could have made the difference between life and death.  Yet, even in the wake of favorable judgments from the Inter-American Commission of Human Rights,[8] the Inter-American Court on Human Rights,[9] and the International Court of Justice (ICJ),[10] national courts have persistently refused to grant any measure of relief to condemned foreign nationals, even in cases in which the violation was undisputed.  As of September 2011, domestic courts have overturned death sentences on the basis of Article 36 violations in only two cases.[11]

In light of these statistics, it is tempting to conclude that Article 36 litigation has had negligible effects on the application of the death penalty in the United States.  And indeed, under no circumstances could even the most optimistic internationalist claim that Article 36 litigation has been a resounding success.  But it would be similarly misguided to say that Article 36 litigation has had no effect on domestic legal culture.  As an initial matter, the United States complied with the ICJ’s provisional measures order in Avena and Other Mexican Nationals,[12] leading to a five-year moratorium on the execution of Mexican nationals in the United States.[13]  In addition, the death sentences of two Mexican nationals were vacated in direct response to the ICJ’s final judgment in Avena; one of those cases is examined in greater detail below.  And finally, litigation over violations of the Vienna Convention in U.S. death penalty cases has attracted substantial public commentary calling on the courts and Congress to comply with their international obligations.  Although it is too soon to say whether the United States will ultimately comply with the ICJ’s Avena judgment in the cases of Mexican nationals who remain on death row, there can be little question that litigation in domestic and international tribunals has led to increased awareness of the United States’ obligations under the Vienna Convention, which in turn has led to greater compliance with Article 36 at the trial level.

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Sandra Babcock: Clinical Professor and Clinical Director, Center for International Human Rights, Northwestern University School of Law.  I was counsel for the government of Mexico in Avena and Other Mexican Nationals, and subsequently represented Mexican nationals Osbaldo Torres, José Medellín, Roberto Moreno Ramos, and Humberto Leal García.  I witnessed many of the events described in this essay, and could not fairly be described as an objective observer.  Nonetheless, my involvement in the litigation described herein allows for a more nuanced perspective on both the successes and failures associated with our attempts to obtain legal remedies for foreign nationals whose consular rights were violated.

[1]. Gregg v. Georgia, 428 U.S. 153, 187, 207 (1976).

[2]. Confirmed Foreign Nationals Executed Since 1976, Death Penalty Info. Center, (last updated Oct. 2, 2011).

[3]. Id.; see generally Vienna Convention on Consular Relations, United Nations, Apr. 24, 1963, 21 U.S.T. 77.

[4]. Vienna Convention on Consular Relations, supra note 3, at 77 (entered into force Dec. 24, 1969).

[5]. Reported Foreign Nationals Under Sentence of Death in the U.S., Death Penalty Info. Center, (last updated Oct. 2, 2011).

[6]. Michael Fleishman, Reciprocity Unmasked: The Role of the Mexican Government in Defense of its Foreign Nationals in United States Death Penalty Cases, 20 Ariz. J. Int’l & Comp. L. 359, 393-94 (2003) (describing Mexico’s consular assistance in capital cases in Texas and elsewhere over the last several decades).

[7]. See, e.g., Paraguay v. Allen, 949 F. Supp. 1269, 1273 (E.D. Va. 1996); Complaint at ¶¶ 70, 76, United Mexican States v. Woods (D. Ariz. 1997) (No. CIV 97-1075-PHX SMM); see generally Brief of the Gov’t of the United Kingdom of Great Britain & N. Ireland as Amicus Curiae in Support of Petitioner-Appellant & Reversal, Carty v. Quarterman, 345 Fed. Appx. 897 (5th Cir. 2009) (No. 08-70049).

[8]. See, e.g., Martínez Villareal v. United States, Case 11,753, Inter-Am. Comm’n H.R., Report No. 52/02, OEA/Ser.L/V/II.117, doc. 1 rev. ¶ 64 (2003), available at

[9]. See The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, ¶¶ 121-22 (Oct. 1, 1999), available at

[10]. See Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 12, 71-72 (Mar. 31).

[11]. See Torres v. Oklahoma, 120 P.3d 1184, 1189-90 (Okla. Crim. App. 2005); Valdez v. Oklahoma, 46 P.3d 703, 709-11 (Okla. Crim. App. 2002).  In Valdez, the court’s decision to vacate the death sentence of Gerardo Valdez was based on its finding that trial counsel was ineffective for failing to contact the Mexican consulate and make use of the resources consular officers would have provided.  Valdez, 46 P.3d at 710.  Although the court found the petitioner’s Vienna Convention claim to be procedurally barred, the court’s decision to grant relief was based on its conclusion that the Mexican consulate would have provided extensive assistance if it had been notified of Valdez’s detention.  Id. at 709-10.  For that reason, I include it among the cases in which Vienna Convention claims have prevailed—although I recognize that others may quibble with this assessment.

[12]. Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, 2003 I.C.J. 6 (Feb. 5).

[13]. See Confirmed Foreign Nationals Executed Since 1976, supra note 2.  After Mexico filed its application instituting proceedings in the ICJ in January 2003, no Mexican national whose case was addressed in the ICJ proceedings was executed until August 5, 2008, when Texas executed José Medellín Rojas.  Id.

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