Tuesday, 12 July 2011 16:56 Written by Alba Leon

Consular protection by the state of which a person is a national is a right of citizens who find themselves in another state. It is enshrined in Article 36 of the Vienna Convention on Consular Relations of 1963 as the means through which states can protect their citizens from abuses of power when they are abroad. As such, it generally observed and reciprocated by states. However, what happens when this right is not respected? Most recently, and prominently, the execution of Humberto Leal García Jr. by way of lethal injection in the state of Texas can give us an example of what U.N. High Commissioner for Human Rights Navy Pillay called a serious breach of International Law by the United States. He had been sentenced to death in 1995. That he had committed a horrible crime was never denied; he raped and murdered a 16 year old, confessed and was found guilty by the United States judicial system. It was also not a question of the constitutional rights to decline to make self-incriminatory statements or the right to legal counsel, as he had been given a Miranda warning prior to his confession, in Spanish.

However, there was one important aspect of his right to legal counsel that he was denied by the Texas police; as a Mexican citizen, he had the right to contact the Mexican consulate and get help from them, a right that was never explained and certainly not granted. His detention, trial and sentencing happened within 24 hours of each other, in July of 1995, with a lawyer appointed to him by the Texas government. Regardless, the question is not even whether he had competent legal counsel, but rather whether the denial of his right to get consular support would have made a difference to his sentencing.

In this violation of his right to consular protection he was sadly not alone. By 2003, Mexico had already identified fifty-five other cases of Mexican citizens who had been sentenced to death in the United States without having been informed of their right to consular protection. This amounts to a half of all of the foreign nationals sentenced to death in the United States. Fifty-two of the cases found by Mexico were considered by the International Court of Justice (ICJ) in the Case concerning Avena and other Mexican Nationals (Mexico v. United States of America).

In the Medellín case, a precedent for the Leal execution, one of the claims advanced by the Texas government was that they had no way of knowing that the detained was of Mexican nationality. Therefore it was assumed that he was a United States citizen and as such had no right to consular protection. However, the Court in Avena found that the authorities which made the arrest should inform the individual arrested of his right under Article 36 when they realise the person is “a foreign national, or once there are grounds to think that the person is probably a foreign national” although, the Court concedes “[p]recisely when this may occur will vary with circumstances." The question was not whether Medellín failed to inform the detaining authorities of his Mexican nationality, but rather why the Texas government had failed to inform the Mexican consulate of the detention of one of its nationals, as soon as they had found out that this was the case. Mr. Medellín could have used consular help; the lawyer appointed to him by the government was suspended from the bar for ethics violations in another case, and also failed to inform Medellín of his right to consular protection.

The Court found that there was a failure on the part of the United States to observe the obligations prescribed by Article 36, and more specifically paragraph 1 (b) of the Vienna Convention, and ruled that appropriate remedy would be to “permit review and reconsideration of these nationals’ cases by the United States courts as pertained the question of whether in each case the violation of article 36 actually caused prejudice to the defendants. The Mexican government was not asking the Court to pronounce itself as to the guilt of the individuals on death row on the United States. Rather, it asked for the fulfilment of an international obligation by the United States, to revise fifty one judicial processes involving Mexican citizens who were at the time on death row, pending execution.

The then President George W.Bush, in 2005, issued a “Memorandum for the Attorney General” in which he ordered state courts to enforce Avena. Yet the Texas governor and the Court of Criminal Appeals announced that they would not follow the ruling of the ICJ. The United States Supreme Court sided with them, establishing that, basically, the states were under no obligation to review the cases listed on Avena based on the ICJ ruling. Supremacy of international treaties was, according to the Supreme Court, a Federal issue, not a state one, and states were free to decide whether to adopt them if there was no Federal Law compelling them to do so.

And so, after 16 years, a series of unsuccessful appeals and petitions for a stay of execution, Mr. Leal was denied his last stay, pleaded for by the Obama administration, which would have given Congress time to pass a Consular Notification Compliance Act, which would have rendered the point of adoption of international treaties at the state level moot by way of Federal Law. He was pronounced dead at 9:53 p.m. U.S. Central Time. Mr. Leal did not deny he was guilty, but there may have been factors, such as claims of mild brain damage and learning disabilities, that may have made a difference between life in prison and death.

This execution goes beyond the crimes committed by one man, or 51 of them for that matter. It should also go beyond the particularities and invite a reflection on the importance of International Law, particularly in terms of reciprocity. Some have argued, particularly in Texas, that ‘letting a child rapist and murderer go free’ would not serve justice. That was never the intention of the Mexican government, let alone the International Court of Justice. The plea was to grant citizens of another state representation and legal advice by their own government which, is assumed, has the best interest of the accused in mind. Leal was guilty and perhaps review would not have altered the outcome, but there are cases like that of Ricardo Aldape, who was released from death row after 15 years because the State Attorney decided that there had been procedural mistakes throughout the arrest and sentencing. Consular support was, in that case, pivotal for his release. The Leal case should be seen within a larger framework of whether foreigner citizens have the right to contact their consulate when they have been accused of a crime. The answer to this should, invariably, be yes.