Using the Vienna Convention

We saw how in the first half of the twentieth century the United States relied on customary international law in protests to other countries over consular access violations. Now the United States was able to invoke the Vienna Convention on Consular Relations in protecting Americans abroad. In 1975, the US Embassy in Damascus learned of the detention in Syria of two US nationals. The Embassy requested access but did not get it immediately. Syria was not yet a party to the Vienna Convention. The Embassy cabled Washington for guidance. The Department of State cabled back to the Embassy that it should use the Vienna Convention, as reflecting rules of customary law. “Recognition of the rights of notification and access is reflected in the Vienna Convention on Consular Relations, which is widely accepted as the standard of international practice of civilized nations, whether or not they are parties to the Convention.”

The Department of State pointed out to the Embassy that consular access is based on reciprocity. “The Government of the Syrian Arab Republic can be confident that if its nationals were detained in the United States the appropriate Syrian officials would be promptly notified and allowed prompt access to those nationals.” The Department stressed the importance of early access. “Detained foreign nationals are inevitably distressed by the prospect of securing and preserving their rights in a legal system with whose institutions and rules they are not familiar.” A consul “is able to assist these nationals in securing and preserving their rights.”⁷

The following year the Department of State invoked the Vienna Convention on Consular Relations in a protest to Argentina, which was a party. An American priest who was living in Argentina ministered to lower-class communities in the city of Córdoba. Along with colleagues engaged in the same work, Father James Weeks was apparently regarded as a subversive by the Government of Argentina. The US Embassy in Buenos Aires learned of his arrest from people who knew him. The Embassy asked to visit, but the Foreign Ministry of Argentina replied that access would be denied because he was being held incommunicado while being investigated. In a protest note, the Department of State said that it “considers this interpretation to be in violation of the 1963 Vienna Convention on Consular Relations to which the United States and Argentina are parties.” The note recited the text of Article 36, paragraph 1 about freedom of communication between a consul and a national. It then referenced paragraph 2, to respond to the Foreign Ministry’s argument that access could be denied for the time of the investigation. “Paragraph 2 of article 36 does indicate that the right is exercised in conformity with the laws and regulations of the receiving state; however, those laws must enable full effect to be given to the purposes for which the rights accorded under this article are intended. In other words, the laws of the country must be consistent with article 36.”⁸ That statement was consistent with the position of the US delegation at the Vienna conference, which, as we saw, argued for the primacy of consular access over any inconsistent local laws.

In 1977, two US missionaries working in El Salvador were taken into police custody. They were released 32 hours later having had no contact with a US consul. Then the US Embassy in San Salvador sent a protest note, stating that the two men

Importantly, the United States here referred to the two missionaries as holders of “rights.” The United States regarded the failure to inform them about consular access as a violation of their rights. And the United States considered their rights violated even though they were held for only one day and a half.

More Americans were being arrested abroad in these years. A rise in international commerce in the postwar period saw more Americans spending time abroad, and along with more foreign stays came arrests. On occasion, in countries where official corruption was prevalent, Americans under arrest were targets for extortion by police officials. This factor made consular protection all the more critical. The phenomenon of Americans being arrested abroad – and being mistreated – was sufficiently prominent in the public mind that Hollywood put it on the silver screen. A 1978 feature film titled Midnight Express turned on the detention of an American in Turkey on drug smuggling charges.

Consulates in Crisis

The following year put the Vienna Convention on Consular Relations into headlines around the world. In Tehran, capital of Iran, an armed group invaded the US embassy building. In two provincial Iranian cities, Shiraz and Tabriz, other groups took over US consulate buildings.¹⁰ The intruders vowed to hold the buildings until the United States returned the overthrown Shah of Iran, then in the United States for medical treatment.¹¹ US diplomatic and consular officials were blindfolded, their hands tied behind their backs.¹² President Jimmy Carter moved two naval vessels close to Iranian waters and assembled helicopters in eastern Turkey for a possible incursion. The intruders threatened that, “in case of the slightest military intervention,” Americans anywhere in Iran “will be in danger.”¹³

The Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations were the centerpieces of the protest the United States made to Iran. The United States attempted to negotiate with Iran for the release of its personnel, but to no avail.¹⁴ At that point the United States filed suit in the International Court of Justice. Iran, like the United States, was party to the Vienna Convention on Consular Relations and to its Optional Protocol concerning the Compulsory Settlement of Disputes. And both were party to the Vienna Convention on Diplomatic Relations and its Optional Protocol concerning the Compulsory Settlement of Disputes. The United States drew on the two conventions and their protocols to gain jurisdiction over Iran for the lawsuit.

Rights of US Nationals in Iran

The Department of State invoked Article 40 of the Vienna Convention on Consular Relations, which requires a receiving state to “prevent any attack” on consular officers. It invoked Article 36 for a “right to communicate and contact other United States nationals.”¹⁵ “Pursuant to Article 36 of the Vienna Convention on Consular Relations,” the Department argued in its pleading to the court, “the Government of Iran is under an international legal obligation to the United States to ensure that United States consular officers ‘shall be free to communicate with nationals of the sending State and to have access to them’, that United States nationals in Iran ‘have the same freedom with respect to communication with and access to consular officers of the sending State’, and that United States consular officers have the right to visit United States nationals who are in ‘prison, custody or detention.’”¹⁶

The Department invoked the reference to consular protection of nationals in Article 5 of the Vienna Convention. “As Article 5 of the Convention makes plain,” the pleading continued, “a principal function of the consular officer is to provide varying kinds of assistance to nationals of the sending State, and for this reason the channel of communication between consular officers and nationals must at all times remain open. Indeed, such communication is so essential to the exercise of consular functions that its preclusion would render meaningless the entire establishment of consular relations.”

The Department also explained that the rights of US nationals who might need to contact a consul were being infringed. “Article 36,” the pleading recited, “establishes rights not only for the consular officer but, perhaps even more importantly, for the nationals of the sending State who are assured access to consular officers and through them to others.” Since Iran’s obligation under Article 36 was to ensure free access between consular personnel and nationals, Iran was in violation, the United States argued, for failing to preserve that access even if the individuals holding the consular personnel were not agents of the Government of Iran. “The Government of Iran has violated, and continues to violate, its obligations under Article 36,” the pleading read, “in that it has failed to ensure that the United States consular officers at the United States diplomatic mission in Tehran may communicate with or have access to other United States nationals in Iran, including those United States nationals who are currently held hostage.” At the time, a small number of US nationals who were not diplomatic or consular personnel were being held. “It has also failed to ensure,” the pleading concluded with reference to the Government of Iran, “that such other United States nationals in Iran may communicate with or have access to these consular officers. It has encouraged and supported a situation in which, in fact, United States nationals are held essentially incommunicado in the grossest violation of consular norms and accepted standards of human rights.”¹⁷ The International Court of Justice ruled in favor of the United States. The court made clear that Iran was violating Articles 5 and 36 of the Vienna Convention on Consular Relations.¹⁸

Consular Access as a Law Enforcement Imperative

Just as the Tehran events were unfolding, consular access was again on the agenda of the General Assembly at the United Nations in New York in two ways. Two important international documents were involved. One was particularly timely in light of the situation in Tehran. It was the International Convention against the Taking of Hostages, whose text the UN General Assembly was just then adopting. In requiring states to deal with hostage taking, the Convention covered the rights of persons who might be arrested for such an act. Anyone arrested was entitled “(a) to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence; (b) to be visited by a representative of that State.”¹⁹

The other document was a Code of Conduct for Law Enforcement Officials, written to set standards for police work around the world. The Code was sponsored by the United States.²⁰ The draft was committed to the General Assembly’s Third Committee, which deals with human rights. The impetus for the Code was concern over police misconduct. The Code gave a set of norms to guide police in their interactions with the public. “In the performance of their duty,” proclaimed Article 2, “law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.” A commentary attached to Article 2 and included as part of the Code listed particular human rights instruments that police were to observe. “The human rights in question,” read the commentary, “are identified and protected by national and international law.” The commentary then listed human rights instruments. The list included the Vienna Convention on Consular Relations, along with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, and others.²¹ As the Code was being adopted, the United States expressed “our full support for this Code of Conduct.”²²

The inclusion of the Vienna Convention on Consular Relations in this listing was significant. The provision at issue was obviously Article 36. This listing of the Vienna Convention along with other treaties protecting human rights was consistent with the analysis we saw both in the International Law Commission and at the Vienna conference that consular access was a human right. By sponsoring the Code, the United States was promoting consular access as a matter of human rights for a detained foreign national.

A Dilemma over Deportation Detentions

Also at this time a judicial clash over consular access was unfolding in the United States. Consular access was at issue in two court cases. In two separate instances in 1978, Mexican nationals were deported from the United States and then reentered clandestinely. Reentry after being deported was an offense under the federal penal code. Each man was apprehended and charged. The two were named Eziquio Calderón-Medina and Evaristo Rangel-Gonzalez. They asked that the reentry charges be dismissed on the grounds that the deportations were legally flawed and therefore could not be used as a basis for a charge of re-entry after being deported. The flaw, each said, was that he had not been informed about consular access when he was detained for deportation. The Immigration and Naturalization Service (INS), as we saw in Chapter 4, had adopted a regulation to implement Vienna Convention Article 36. But INS agents did not comply with the regulation. Neither man had been informed of the right to contact a consul of Mexico.

These cases put the Vienna Convention’s consular access provision before courts in the United States for the first time. The courts would have to decide the effect of the violation. One choice was to say that the failure to notify about consular access meant nothing, that the deportations were valid, and therefore so too was a charge of reentry after deportation. The other was to say that the failure to notify about consular access nullified the deportation order, and therefore that no charge of reentry could be pressed.

The two cases, as it happened, were in the same federal district court in the State of Washington, but before different judges. In each case the district judge dismissed the indictment, ruling that the deportation orders were invalid. Each judge said it was unnecessary to examine the facts to see exactly how the failure to give information about consular access might have affected the deportation proceedings. The failure in itself was enough to nullify the deportation order that followed. The judges said that “conformity with applicable laws and regulations must be judged without inquiry into the prejudice caused to the defendant.”²³

The US Attorney appealed, arguing that the failure to inform about consular access should nullify the deportation only if the failure resulted in fundamental unfairness in the deportation process. The Court of Appeals heard the case in a panel of three judges. In a 1979 decision signed by two of them, they rejected the US Attorney’s argument. The failure in observing consular access, they said, does not have to have such a decisive impact before the deportation is invalid.

But the two Court of Appeals judges disagreed with the district court judges on the issue of prejudice. Even though they did not require that the failure resulted in fundamental unfairness, the two Court of Appeals judges said there must be prejudice. They ruled that the deportation order would be invalid only if the failure to observe consular access obligations had some impact on the deportation proceedings. So they sent the case back to the district court. “On remand,” said these two judges, “the aliens should be allowed the opportunity to demonstrate prejudice resulting from the INS regulation violations.” The issue would be whether the violation “harmed the aliens’ interests in such a way as to affect potentially the outcome of their deportation proceedings.”

The third judge in the Court of Appeals dissented. He said that the district court judges were right not to require any showing of prejudice. He thought that the Vienna Convention required a nullification of the deportation. “This nation,” he wrote, “must manifest integrity in our treaties with foreign countries. To honor the provisions of Article 36 of the Vienna Convention on Consular Relations,” he said, “mandates a sense of justice and decency. To do anything less is a severe erosive compromise of our very essence equal if not greater than a Constitutional violation.” His preferred solution for the two cases was “an affirmance of the district court decision,” but he wrote that if prejudice was to be required, he advocated “imposing the burden on the government to establish the absence of prejudice.”²⁴

The case went back to the district court, which, as it turned out, needed by then to deal with only one of the two Mexicans, namely, Rangel-Gonzalez. Since prejudice now was to be required, the Consul-General of Mexico in Seattle submitted an affidavit detailing what his consuls do to assist detained Mexican nationals. His staff, the Consul-General affirmed, visits Mexicans who call in such situations and contacts friends and an attorney, and might send a representative to the deportation hearing. Rangel-Gonzalez submitted an affidavit stating that when he was detained he did not know he had a right to contact a consul and that if he had been informed he would have done so. The point of that affidavit was to establish that he had been harmed by the failure of the authorities to inform him about consular access. Also introduced was an affidavit from an immigration attorney who was not otherwise involved in the case saying that someone in Rangel-Gonzalez’s position might have been able to avoid a deportation order by agreeing to depart voluntarily.

The district court decided that all this was insufficient. Rangel-Gonzalez had not shown anything specific that consular assistance might have done for him. The district court affirmed the conviction. That decision, however, was appealed by Rangel-Gonzalez back to the Court of Appeals, where his appeal was assigned to three judges who had not dealt with his earlier appeal. Ruling in 1980, the case now titled only US v. Rangel-Gonzales, these three judges said that in such a situation the foreign national must put on some evidence that he might have been afforded consular assistance. This, they said, Rangel-Gonzalez had done by his own statements and by the information from the Consul-General. Rangel-Gonzales “carried his initial burden of going forward with evidence that he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance that would have carried some possibility that he might have avoided deportation.”²⁵ Once this evidence was introduced by Rangel-Gonzales, the judges said, it would be open to the prosecution to rebut it. But Rangel-Gonzales did not have to show exactly what a consul might have done in the deportation proceedings, or that a consul would have been able to keep Rangel-Gonzales from being deported. Here, said the Court of Appeals judges, the prosecution had not rebutted Rangel-Gonzales’ evidence, so the deportation was invalid, and the re-entry charge had been properly dismissed.

An American Facing Execution

In 1984 the arrest in Nigeria of an American businesswoman saw the Vienna Convention on Consular Relations at issue in a case that could have resulted in an execution. Marie McBroom was residing in Nigeria pursuing a commodities trading business. She was arrested there and was held five months before being charged with a crime. The charge was conspiring to export a million barrels of crude oil illegally from Nigeria.²⁶ The offense carried a potential penalty of death. McBroom was not informed upon arrest about consular access. US officials learned of her situation through other channels and eventually gained access to her in custody. When McBroom was put on trial, consular personnel attended each day to monitor the proceedings.²⁷

McBroom was acquitted of the charge, and consular officials then worked to expedite her release, eventually succeeding.²⁸ Marie McBroom’s case showed the importance for the United States of its ability to provide consular assistance to US nationals. Business activity abroad, along with travel for other reasons, was increasingly putting Americans in situations of jeopardy. By the early 1990s, several thousand US nationals were thought to be in detention abroad at any one time.²⁹

More United Nations Action on Consular Access

The year 1984 brought the adoption of yet another treaty calling for consular access for persons arrested for an internationally defined crime. Again the venue was the United Nations. The UN General Assembly adopted the text of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It required states to prosecute persons who inflict torture. It specified that if a person arrested is a foreign national, the person “shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national.”³⁰

In 1985 the UN General Assembly addressed consular access as applicable to a broad spectrum of foreigners. The General Assembly’s Third Committee, which had drafted the code on law enforcement, proposed a document it called Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live. The document recited that states were bound by human rights treaties to ensure rights to everyone but noted that “individuals increasingly live in countries of which they are not nationals,” hence that states needed to be reminded that they owe human rights obligations not only to their own citizens but to aliens as well. The Declaration recited a broad array of rights that are to be guaranteed to aliens. One such right read: “Any alien shall be free at any time to communicate with the consulate or diplomatic mission of the state of which he or she is a national.” The General Assembly adopted the Declaration on a voice vote.³¹

Out of the Sky

A 1986 real-life drama in Nicaragua put US consuls in a precarious posture in providing consular assistance. In October of that year Eugene Hasenfus, a US national, flying over Nicaragua, was shot down. Hasenfus was flying on a C-123 cargo aircraft that had taken off from an air base in El Salvador, apparently to deliver military equipment to rebel forces that were opposing Nicaragua’s government. The C-123 came down on October 5 in missile fire from the Nicaraguan army. Three other crew members died, but Hasenfus parachuted safely to Nicaraguan soil.³² Hasenfus was detained by Nicaraguan police. Daniel Ortega, Nicaragua’s president, publicly charged the United States with using Hasenfus to supply the rebels.³³

The Department of State demanded immediate access to Hasenfus. Nicaragua was a party to the Vienna Convention on Consular Relations. Nicaraguan officials indicated they would allow a consular visit but did not specify just how soon.³⁴ A US official provided Hasenfus’ wife, who had flown to Nicaragua, with a list of Nicaraguan defense lawyers.³⁵ She was allowed to visit Hasenfus October 9.³⁶ Alfred Laun, a US Embassy officer in Managua, explained at a press conference that the Vienna Convention required that a US consul be allowed to “freely communicate with the prisoner.” Donald Tyson, US Consul-General in Managua, was allowed to meet with Hasenfus in detention on October 10.³⁷ US personnel complained, however, that Nicaraguan officials insisted on being present and could hear what was being said. US personnel also complained that the meeting was cut short by Nicaraguan officials.³⁸

Complicating the situation for the United States was the fact that its interests in the situation were not necessarily consistent with those of Hasenfus. The US Government was publicly denying that Hasenfus was on a US Government mission. The Department of State issued a press statement claiming no US involvement.³⁹ Nicaraguan officials, anxious to gain information from Hasenfus that would show the contrary, were concerned that US officials would try to keep him from talking. The Philadelphia Inquirer quoted an unnamed Nicaraguan military official as saying, “If we give him to the embassy before we talk to him, he won’t say anything.”⁴⁰

As it turned out, the United States was indeed behind Hasenfus’ flight into Nicaragua. After his arrest, US officials were scrambling behind the scenes to keep their role secret. The operation extended even beyond Nicaragua. The funds the US Government was using to supply the Nicaraguan rebels came from a covert sale of arms to Iran, through Israel as intermediary. Information from the C-123 or from Hasenfus might lead to public disclosure of that operation as well.⁴¹ It was being carried out in violation of Congressional legislation. Within the US Government, the Department of State itself, the department for which consuls work, was centrally involved in the rebel-supply operation. Elliot Abrams, Assistant Secretary of State for Inter-American Affairs, made telephone calls to try to collect the bodies of the dead pilots. Abrams was called in by Congress and testified that the US Government was not involved in the rebel supply operation.⁴² Abrams was later charged criminally for withholding information from Congress, charges to which he plead guilty.⁴³

The US consular staff in Managua had an obligation to assist Hasenfus. At the same time, they were subordinate to the Department of State, which was purveying an account of his activities that was not true. Hasenfus wanted to avoid a long prison term for acts that Nicaragua deemed criminal. To that end, it was to his benefit to say what he knew about the Central Intelligence Agency or other US agencies that were behind his activities. In the event, Hasenfus did tell Nicaraguan officials that the US Government was behind his doomed flight.⁴⁴ Hasenfus was put on trial, convicted and sentenced to prison but shortly was pardoned by President Ortega and was released.⁴⁵ The affair showed the importance to the United States of access to a detained national, as it insisted on access and then monitored proceedings. Consul-General Tyson attended court sessions during the trial of Hasenfus.⁴⁶

More Treaties Requiring Consular Access

By the end of the decade, three more international instruments were adopted that called for consular access, adding to the growing body of international practice on consular access as a human right. In March 1988 a conference called by the International Maritime Organization adopted the text of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The Convention requires states to prosecute persons, if certain jurisdictional requirements are met, for vessel hijacking or acts that endanger the safety of a vessel’s passage. Provision was made for the arrest of foreigners. Under Article 7, paragraph 3, any person arrested “shall be entitled to: (a) communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence; (b) be visited by a representative of that State.” The following paragraph, in language tracking Article 36 of the Vienna Convention, provided,

Later in 1988, the UN General Assembly adopted a set of principles aimed at protecting all persons held under arrest. Called the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the document covered an array of rights. Included was a guarantee related to the detention of a foreigner:

In 1990 another multilateral treaty was adopted that called for consular access. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families aimed at protecting this vulnerable category of persons. Due to their often precarious financial and legal situation, migrant workers are at high risk of running afoul of the law. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families contained a virtual bill of rights for migrant workers. A listing of rights was written into a section of the Convention headed “Human Rights of All Migrant Workers and Members of their Families.” One of the listed “human rights” was consular access:

The Convention established a monitoring committee to take periodic reports from signatory states. The committee can pressure states if it learns from human rights organizations or from other sources that consular access is being denied. The Convention represented one more instance of international action affirming consular access as a matter of human rights for a foreigner under detention.

Alarm Bells in Mexico City and Ottawa

By the mid-1980s the Government of Mexico detected a pattern of its people being arrested in the United States, many on serious charges, without being informed about consular access. The phenomenon was sufficiently widespread that in 1986 Mexico, a party to the Vienna Convention, set up in the United States what it called a Program of Legal Consultation and Defense for Mexicans Abroad. Mexican foreign service officers were sent to US law schools to familiarize them with US procedure in criminal cases.³ The work of Mexican consular officers in the United States made headlines in 1991. Four Mexican nationals had been sentenced to life in prison for the killing of four other Mexicans in the State of Illinois. Mexico’s Consulate-General in Chicago, Illinois, uncovered information casting doubt on their guilt and gave it to Illinois Governor James Thompson. Thompson had Illinois State Police investigate, and they confirmed that the evidence was insufficient. Thompson commuted the sentences to time already served.⁴

In 1992, a Canadian named Stanley Faulder was awaiting execution in the State of Texas, after being sentenced to death in 1977 for the robbery-murder of an elderly woman.⁵ Faulder was housed in a prison section in Texas referred to as “death row.” In the states that use capital punishment in the United States, prisoners sentenced to death are housed separately from others. With Faulder facing a May 6, 1992 execution date, Attorney Sandra Babcock, newly appointed to represent him, began investigating.⁶ The Canadian consulate in Dallas had no information about Faulder, even though by then he had been on the Texas death row for over a decade. In Ottawa, Amnesty International’s Canada branch took an interest, concerned about a consular access violation as an infringement of human rights. Amnesty International’s Mark Warren tracked Faulder’s case. Faulder had apparently not been informed about consular access upon arrest. The lawyers who represented him in 1977 did not mention that fact in court proceedings.

Attorney Babcock was able to get a Texas district court to stay Faulder’s execution.⁷ She contacted relatives of Faulder in Canada, who had not heard from Faulder and presumed him dead.⁸ Importantly for his case, Faulder’s relatives knew about a severe childhood injury that left him with organic brain damage. Evidence of this type might have kept Faulder from being sentenced to death. Canada, as a party to the Vienna Convention, intervened. Canada’s Secretary of State for External Affairs, Barbara McDougall, wrote to Texas Governor Ann Richards, urging clemency. McDougall explained that Faulder had not been informed about consular access at the time of arrest.⁹

McDougall’s approach to Governor Richards was unusual. Governments normally deal with each other only at the central level. A central government answers for any international improprieties even if it is a question of an act of a local official or a local agency of government. “The conduct of any State organ shall be considered an act of that State under international law,” reads the international rule, “whatever its character as an organ of the central Government or of a territorial unit of the State.”¹⁰

McDougall’s plea to Governor Richards showed an extreme level of concern on the part of Canada. At the same time, Canada’s embassy in Washington, following the more traditional path, sent a protest note to the US Department of State.¹¹ When it got no action, Canada shot a second protest note.¹² The Canadian protests spurred the US Department of State to contact Texas authorities and to learn that Faulder indeed had not been informed about consular access upon arrest.¹³

When neither the US federal government nor Governor Richards took action, Attorney Babcock raised the issue in a court of the State of Texas. She argued that the court had to provide some corrective for the consular violation. She cited a clause in the US Constitution that says that treaties are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Babcock said that courts must enforce the Vienna Convention’s Article 36. The court turned her down.¹⁴ It ruled that the violation did not warrant further inquiry, and the Texas Court of Criminal Appeals agreed.¹⁵ A new execution date was set for Faulder.¹⁶ Babcock then went into a federal district court, which stayed the execution, agreeing to consider the matter further.¹⁷

Not Alone

Faulder’s case would not see quick action from the federal court. But other court action on consular access was not long in coming. Attorneys representing several foreign nationals under sentence of death in Texas looked into their arrests and found that, as with Faulder, police had given them no information about consular access. One of the foreigners in this situation was Carlos Santana, from the Dominican Republic, on death row in Texas, facing a March 23, 1993 execution date. As that date neared, public protest was organized in the Dominican Republic. The same occurred to oppose Santana’s death sentence in New York City’s sizable Dominican community.¹⁸

Santana stood convicted of participation in the 1981 robbery of an armored car in which one of the car’s guards was shot and killed. After Santana was convicted, a hearing was held before his jury to determine whether Santana should be executed. At such a hearing, attorneys may present any information that might go in favor of sparing the person’s life, and normally attorneys do so. Santana’s attorneys presented little information in mitigation. The absence of such information was so unusual that the prosecuting attorney in argument to the jury referred to it as a reason to impose the death penalty. The jury complied. Santana appealed, but in 1986 the Texas Court of Criminal Appeals affirmed his sentence of death.¹⁹

Only on March 10, 1993, thirteen days before his scheduled execution, did Santana learn from new attorneys that as a Dominican national he had a right of consular access and should have been informed of it when arrested.²⁰ Attorneys Lawrence Schilling, S. Adele Shank, and Ramsey Clark, the latter a former Attorney-General of the United States, asked a state court in Texas to stay Santana’s execution because of the consular violation. Like Babcock, they argued that Article 36 must be enforced by the courts of Texas. They cited the Department of State’s instruction to US consuls to protest if a US national is arrested and is not informed about access to a US consul. They cited the Rangel-Gonzales case and said that the conditions specified there were met. Santana did not know of his right of consular access, and he affirmed that he would have contacted a consul had he known. The Government of the Dominican Republic also filed an affidavit, saying that Santana would have received consular assistance had he asked.²¹ Santana had spent his early years in his native Dominican Republic, where he had done well in school and enjoyed a good reputation. He had been involved in undertakings of a charitable nature. So evidence existed for mitigation that a consul might have found and that might have saved him from his death sentence.

The Government of the Dominican Republic, as a party to the Vienna Convention, also approached the US Department of State. On March 15, 1993, Jose del Carmen Ariza, the Dominican ambassador in the United States, filed a formal protest in a letter to Secretary of State Warren Christopher, asking for action to avert Santana’s execution.²² Ariza got no immediate response.

Ambassador Ariza also wrote to Texas Governor Ann Richards, recounting the fact that Santana had not been informed about consular access and “urgently request[ing] from you on behalf of the people of the Dominican Republic and the National Government the stay of the execution of Mr. Santana to allow time for his attorney to handle this matter through appropriate channels.”²³ Ariza requested a personal meeting with Governor Richards. Getting no response, he and Attorney Clark flew to Austin and went to Richards’ office. Richards declined to talk to them.

A Hemispheric Strategy

Concerned that the Texas courts, and Governor Richards, might not stop the execution, Santana’s attorneys made an unorthodox move. Attorney Shank had experience working through the Inter-American Commission on Human Rights when death row clients were turned down by the courts of the United States. The Inter-American Commission is part of the Organization of American States (OAS), the intergovernmental organization of the Western Hemisphere. The United States was a founding member. On March 11, she, along with Attorney Clark and this author, filed a complaint in the Inter-American Commission, explaining that Santana had not been informed about consular access, and alerting the commission that Santana was about to be executed.²⁴

In 1948, the OAS adopted a bill of rights, which it called the American Declaration of the Rights and Duties of Man.²⁵ In 1959, the OAS established the Inter-American Commission to monitor human rights performance. Based in Washington, DC, it is composed of seven individuals elected by the OAS. In 1965 the OAS authorized the Inter-American Commission to investigate petitions claiming a violation of rights by any OAS member state. The United States is a member state, so the Inter-American Commission may examine a petition alleging a violation of rights by it. The American Declaration is the standard by which the Inter-American Commission assesses OAS member states.²⁶ The Commission can issue a report to explain whether rights have been violated.

By the early 1990s, US lawyers had just begun to approach the Inter-American Commission on Human Rights to challenge death sentences imposed in the United States. In 1987, a complaint was filed for a young man sentenced to death in South Carolina, and another in Texas, challenging capital punishment applied to persons who were underage at the time of their offenses. Few countries in the world allowed executions in such situations. The Inter-American Commission turned the complainants down.²⁷ The next try was by Attorneys Shank and Bert Lockwood, who challenged racial bias in application of the death penalty in the case of an African-American man sentenced to die in Louisiana.²⁸ The Inter-American Commission noted statistical evidence of a disparity but would not say that racial bias was a factor in the particular case.²⁹

The American Declaration of the Rights and Duties of Man does not mention consular access, but Article 18 requires a fair trial, and Article 26 calls for observance of due process of law. The petition for Santana relied on these provisions, arguing that a failure to inform a foreign national about consular access constitutes a denial of a fair trial, and of due process of law. The Inter-American Commission let the Department of State know immediately that it had a petition for Santana.³⁰ Meanwhile in the Texas district court, attorneys for Texas objected that Texas officials had been unaware that Santana was a foreigner. Attorneys Schilling, Shank, and Clark filed information about Santana’s interaction with police to show that they did know of his Dominican nationality. The request was rejected, however, by the district court,³¹ and then by the Texas Court of Criminal Appeals.³² Within hours of the time set for Santana’s execution, Attorneys Schilling, Shank, and Clark asked the US Supreme Court to review the case.³³ Santana’s execution was delayed while the high court deliberated. But it quickly declined to act, and Santana was executed.³⁴ Six weeks later, on May 10, 1993, the Department of State replied to Ambassador Ariza’s March 15 protest letter, saying that Texas authorities did not know Santana was a foreigner, and on that basis denying any failure to comply with Vienna Convention Article 36.³⁵

An Enforceable Right?

A petition to the Inter-American Commission on Human Rights does not die along with the individual. The idea behind the petition system is that the commission is to advise a country if it has violated rights. Shortly after Santana’s execution, the US Department of State filed a response to the Inter-American Commission. The Department challenged the characterization of the consular access violation as a due process matter. “It is highly questionable,” wrote the Department, whether Vienna Convention Article 36 “accords a ‘right of consular access’ enforceable by any individual detainee against the receiving State.” The Department also objected that Texas authorities were not aware of Santana’s foreign nationality, and said that he had tried to conceal it.³⁶

Petitions at the international level, as before the Inter-American Commission on Human Rights, pose particular difficulties for the United States because the Government of the United States answers for breach of international standards, even when the act being challenged is taken by state-level officials. The Department of State relied on the Texas Attorney-General for information to respond to the arguments made on Santana’s behalf. The Texas Attorney-General told the Department, as it had told the Texas courts, that Houston police and prosecutors had not been aware that Santana was a foreigner. Petitioners for Santana gave the commission trial transcript excerpts and Texas prison documents to show that prosecutors knew of his Dominican nationality.³⁷

The Department’s refusal to accept a right of consular access for detainees like Santana prompted Attorney Shank and this author to propose to the Inter-American Commission on Human Rights that it take that question to a higher level. “The United States of America refuses to recognize either an enforceable right of consular access, or the Commission’s power to adjudicate that right,” they told the Inter-American Commission in a reply pleading in the Santana case. “These issues,” they wrote, “may appropriately be placed before the Inter-American Court of Human Rights for an advisory opinion.”³⁸

The Inter-American Court of Human Rights is another arm of the Organization of American States. The court is superior to the Inter-American Commission on Human Rights. The court was established by a 1969 treaty called the American Convention on Human Rights.³⁹ Most OAS member states are parties. President Jimmy Carter signed the American Convention for the United States in 1977, but the US Senate did not give consent, so the United States did not become a party. The Inter-American Commission on Human Rights has the right “to consult the Court on the interpretation of the American Convention on Human Rights or of other treaties concerning the protection of human rights in the American states.”⁴⁰ This consultation process can lead to a formal written advisory opinion from the court.⁴¹

The Canadian in Court

In the event, the Inter-American Commission on Human Rights did not take up the suggestion to refer the consular access issue to the Inter-American Court of Human Rights. Nor did it rule on whether Santana’s rights had been violated. Just as Santana was being executed, however, the impending execution of a Mexican caused new diplomatic problems for the United States. Ramón Montoya Facundo was convicted in Texas of shooting to death a Dallas police officer who was trying to arrest him. Montoya maintained that his gun discharged when he fell trying to flee.⁴² In light of Montoya’s claimed defense, human rights groups in Mexico charged racism. The Vatican joined Mexico in seeking clemency. Montoya was executed nonetheless, sparking public protest in Mexico. The Mexican Government had to post extra police around the US Embassy in Mexico City to protect it from crowds angered over the execution. The warden of a prison in Mexico had to provide special protection for a group of US nationals who were inmates there when Mexican inmates threatened to attack them over the execution of Montoya.⁴³

Faulder’s case, meanwhile, was making its way through the federal courts. Canada filed a brief in Faulder’s support, an unusual step for a foreign government to take. Governments typically limit themselves to lodging a protest with another government. Canada filed as a “friend of the court,” or amicus curiae in the Latin. This procedure allows for a brief to be submitted on the basis of having an interest in the outcome. In its brief, Canada explained that “providing assistance to Canadians abroad” was “one of the important tasks carried out by consular officials.”⁴⁴ In her own filing in the federal court, Attorney Babcock referred to the Rangel-Gonzales case. To heighten the importance of consular access in Faulder’s situation, she wrote that “the only significant difference” with the Rangel-Gonzales case was that “this case is a matter of life or death.”⁴⁵ But in 1995 the federal district court turned Faulder down. It said that whatever information the Canadian government might have located to help Faulder could have been found by the attorneys who represented him at his trial.

Babcock took an appeal for Faulder to the federal court of appeals. That court accepted much of what she argued. “The Vienna Convention on Consular Relations,” said the Court of Appeals, “requires an arresting government to notify a foreign national who has been arrested, imprisoned or taken into custody or detention of his right to contact his consul.” By referring to “his right,” the court seemed to accept that Article 36 of the Vienna Convention created a right for a foreign national under detention. The court also accepted that Canada had a valid role in providing consular protection. “Canadian regulations,” said the court, “require the Canadian consul to obtain case-related information if requested by the arrestee to the extent that it cannot otherwise be obtained by the arrestee.” The court cited Canada’s administrative regulations for that proposition.⁴⁶ The Court of Appeals also confirmed the fact of a consular access violation in the arrest of Faulder. “Texas admits,” it wrote, “that the Vienna Convention was violated. After investigating the allegations, William Zapalac, Assistant Attorney General of Texas, found no evidence that Faulder had been advised of his rights under the Convention.”

Despite going this far in accepting Babcock’s arguments, the Court of Appeals let Faulder’s conviction stand. “Faulder or Faulder’s attorney,” it said, referring to the lawyers who represented Faulder at his trial, “had access to all of the information that could have been obtained by the Canadian government. While we in no way approve of Texas’ failure to advise Faulder, the evidence that would have been obtained by the Canadian authorities is merely the same as or cumulative of evidence defense counsel had or could have obtained.”⁴⁷

A Mother across the Rio Grande

Noncompliance by police was being raised in still another capital case in Texas at this time. A taxi driver in El Paso, Texas, had been shot dead in his taxi in 1979. The taxi was found by Chihuahua State Judicial Police in Ciudad Juarez, just across the Rio Grande River in Mexico. For months El Paso police had no suspect. Then they were told by a 16-year-old named Gerardo Olague that he and a man named Cesar Fierro were passengers in the taxi, and that Fierro robbed and shot the driver.

Olague knew that Fierro’s mother lived in Ciudad Juarez. He showed officers from both police departments her house there. Chihuahua State Judicial Police went to the house and learned from Fierro’s mother that Fierro was in El Paso in the county jail. The Chihuahua officers arrested Fierro’s mother, along with Fierro’s step-father. Neither was charged with any crime. El Paso police located Fierro in the county jail, where he was being held on a charge unrelated to the taxi driver case. The El Paso police took Fierro from the county jail to their own city jail. Fierro was a Mexican national.

An El Paso officer interrogated Fierro about the taxi driver murder. The officer told him that his mother and step-father were in custody in Ciudad Juarez and offered to let him speak by telephone with the Chihuahua officer who was holding them. The police in Ciudad Juarez in those years were known for brutality, a reputation of which Fierro was aware. Fierro took the telephone and spoke to the Chihuahua officer. As soon as the conversation ended, Fierro answered his interrogator’s questions and said he killed the taxi driver.⁴⁸ Fierro’s mother and step-father were released shortly thereafter.

Before trial, Fierro’s lawyer moved to exclude the confession as coerced. At a suppression hearing, the El Paso officer denied collaborating with Chihuahua State Judicial Police. Fierro’s mother and step-father both testified to having been arrested by the Chihuahua State Judicial Police for reasons never made clear to them. Fierro’s mother said she was physically abused. Fierro’s step-father said threats were made to attach electrical wires to his genitals.⁴⁹ He also testified that as he was being released from the Ciudad Juarez jail, an officer told him that he and his wife were being freed because Fierro had confessed in El Paso.

In court Fierro repudiated his confession, saying he was only protecting his mother and step-father. But the prosecution was allowed to use it, plus testimony from Olague. Fierro was convicted and sentenced to death. After unsuccessful appeals, a date of August 10, 1994 was set for Fierro’s execution. In an effort to stave off the execution, a petition was filed on his behalf in the Inter-American Commission on Human Rights by Attorney Shank and this author. Like the petition for Santana, it recited that Fierro had not been informed about consular access. It recounted the circumstances of his confession. It asked the commission to ask the United States to stay the execution.⁵⁰ The Inter-American Commission agreed. It asked the United States to see that Fierro not be executed until it could decide the case.

Fierro’s date with the gallows was canceled. His attorneys convinced a Texas court to order a hearing to determine whether his confession was invalid.⁵¹ The Inter-American Commission hears cases only when domestic proceedings are at an end. The United States asked the commission to suspend consideration.⁵² Action on Fierro’s case in the commission was put on hold.

The challenge in the Texas court against Fierro’s confession bore fruit. Fierro’s attorneys uncovered a document written by the El Paso interrogating officer in which he acknowledged contact with the Chihuahua State Judicial Police. Acting on that information, the District Court of El Paso County found that the El Paso officer “did have information that the Defendant’s mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant.” To make matters worse, said the District Court, the El Paso officer had “presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979.” The District Court said there was “a strong likelihood that the Defendant’s confession was coerced by the actions of the Juarez police,” with the acquiescence of the El Paso officer.⁵³ The District Court said that Fierro’s conviction should be vacated and that he should be retried.

But the prosecution appealed. The Texas Court of Criminal Appeals agreed with the District Court that the confession was invalid. Fierro’s “due process rights were violated,” it said, by the “perjured testimony” of the interrogating officer. But the court let Fierro’s conviction stand. Of the nine judges on the court, a majority of five said that the testimony of Olague sufficed to sustain the conviction. Four judges dissented. They said that Olague’s testimony was insufficient to convict Fierro. Olague had made confusing statements at trial that damaged his credibility.

One of the dissenters, Judge Frank Maloney, recited the contents of an affidavit given, then recently, by the prosecuting attorney who had taken Fierro to trial and had gained Fierro’s conviction. The prosecuting attorney said that the El Paso police never told him about their collusion with the Chihuahua State Judicial Police. Judge Maloney recited the text of the prosecutor’s affidavit. “Had I known,” it read, “at the time of Fierro’s suppression hearing what I have since learned about the family’s arrest, I would have joined in a motion to suppress the confession. Had the confession been suppressed, I would have moved to dismiss the case unless I could have corroborated Olague’s testimony. My experience as a prosecutor indicates that the judge would have granted the motion as a matter of course.”⁵⁴

An irony in Fierro’s situation was that under US law as it stood when Fierro was tried, if a coerced confession was used to convict a person, the conviction had to be reversed. The conviction could not be affirmed on the basis of other evidence of guilt. In 1991, however, the US Supreme Court abandoned that rule.⁵⁵ Had Fierro’s lawyers challenged the confession five years earlier, Fierro would have gone free. The 1996 decision of the Texas Court of Criminal Appeals left Fierro under sentence of death. His attorneys then made additional filings in the Texas courts. Since that meant Fierro still had a chance in the courts of the United States, his petition before the Inter-American Commission on Human Rights continued on hold.

Variation in Capital Punishment

In potentially capital cases, a consul needs to be involved early on. Crucial discretionary decisions are made that determine whether death will be sought as a penalty. Of all persons convicted of murder in the United States, only 3 percent are sentenced to death.⁸ Legislatures determine which persons are eligible for the death penalty,⁹ but prosecutors decide whether to ask for the death penalty. A wide range of factors comes into play. In rural areas, prosecutors sometimes shy away from charging a murder as capital because the expense of capital litigation may be too high for the local budget.¹⁰ A consul may be miffed as to why one person charged with murder faces the death penalty while another does not.

Death sentences have been challenged on the ground that the prosecutor’s decision to seek it is arbitrary.¹¹ One person sentenced to death argued to the US Supreme Court “that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies.” The court agreed that a prosecutor enjoys “unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them.”¹² In another case the Supreme Court acknowledged that with murder suspects charged with comparable offenses, one may be up for execution while the other is not.¹³

Once a murder is charged as a capital offense, the decisions to convict, and then which sentence to impose, fall to the discretion of judges and juries. While legislatures have set standards, judges and juries enjoy great latitude. Once a person is sentenced to death, clemency lies in the hands of the governor of the state. Typically a committee is also involved, called a board of pardons or parole. The grounds for clemency are elastic.¹⁴ In all this exercise of discretion, a person’s ethnicity may play a role. Despite efforts by the courts to ensure rationality in capital sentencing, “race continues to play a major role in determining who shall live and who shall die,” according to US Supreme Court Justice Harry Blackmun.¹⁵ “The death penalty,” wrote Blackmun, “remains fraught with arbitrariness, discrimination, caprice, and mistake.”¹⁶

Consuls also worry about bias against foreigners in the decisions that lead to a death sentence. In perhaps the best-known instance of the execution of foreigners in a US court, two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti, were put to death in Massachusetts in 1927 following convictions for murder.¹⁷ The proceedings were widely viewed as tarnished by bias against the two men based on their alienage.¹⁸

Trial Procedures

In capital cases, the most incriminating evidence may come from the suspect’s own mouth. Police in the United States typically try to interrogate as soon as a person is taken into custody. Statements made to police may determine the outcome of a case. Under interrogation, the suspect may admit to the crime. Or the suspect may give an account that exonerates but that contains elements that are incriminating, like acknowledging presence at the scene of a crime. Or the suspect may acknowledge animus toward the victim, thereby establishing a motive.

Police are trained to elicit incriminating information by methods that include half-truths, offers of lenient treatment, or threats of more severe treatment for failing to cooperate. A foreigner may be less likely to see through such ploys. A foreigner may be more easily threatened by the potential consequences for declining to say what the officer wants to hear. A foreigner may think that admitting the crime will result in deportation rather than prosecution. While police must explain to a suspect that a statement may be used in court, consultation with a consul can often better prepare a foreign national.

Preparation for trial needs to be thorough for a suspect facing the possibility of execution. An emphasis in US law on fact-finding in the trial court puts pressure on consuls to ensure that their nationals are properly represented as soon as possible. Juries have been a major feature of trial procedure in the United States going back to English law, and this has resulted in great weight being given to facts as found at trial, even if a particular case is not tried before a jury. In many countries, damaging evidence presented at the trial level is more readily reassessed in appeals courts. An example is the highly publicized trial of an American woman named Amanda Knox, who was convicted of murder in Italy in 2014. Knox’s conviction was overturned by an appellate court, the Court of Cassation, after it reassessed the evidence against her.¹⁹ Such outcomes in appellate courts in the United States are rare. A foreign national convicted in a trial court on questionable evidence may think that an appellate court will have to overturn the conviction. The chances that an appellate court will question the facts as found at trial, however, are low.

A factor facilitating reassessment at the appellate level in many countries is a requirement that a trial court must explain in writing what evidence led to a conviction: why a particular witness was deemed credible, why a particular piece of evidence was found probative, or why a suggested motive seemed likely.²⁰ In US courts, juries do not explain the reasons for a conviction, and even if a trial is conducted without a jury, judges are not required to record reasons for a conviction. Appellate courts as a result can only speculate at why the evidence was deemed sufficient at the trial, hence their reluctance to second guess. Consuls working in the United States must adjust to the importance of fact-finding at the trial level. If a foreign national’s case is not presented as expertly as possible at trial, chances of exoneration are remote.

A corollary aspect of US procedure is that an acquittal at the trial level will not be reversed on appeal. Not so in many other countries, where a prosecutor can appeal an acquittal. If a foreign national is acquitted at trial in a US court, the matter is closed. That feature of US procedure further accentuates the importance of early participation by a consul.

Death Qualification

Capital cases in the United States involve a unique feature that may shape the outcome of a case. “No freemen shall be taken or imprisoned,” proclaimed King John in his Magna Carta in the year 1215, “except by the lawful judgment of his peers.” Capital cases are typically tried before a jury. In a death case, before potential jurors are seated to serve, they are questioned about their opinions on the death penalty. This procedure is called “death qualification.” Those who say that they could not impose the death penalty are excused from serving. The rationale for “death qualification” is that the presence on juries of persons who refuse to sentence to death would undermine the system of capital punishment.

This exclusion of potential jurors, however, raises the question of whether the jury is truly one of “peers,” or rather only a segment of them. Attorneys Lockwood and Shank challenged the death-qualification process in the Inter-American Commission on Human Rights in the same case in which they challenged racial bias. They cited experimental studies that showed that death-qualified jurors are more likely than others to accept police testimony over the testimony of the accused. Experiments conducted to mimic the death qualification process showed that it yields juries more likely to convict. The Inter-American Commission did not find the challenge well-founded on the facts of the particular case, since the commission found the evidence of guilt strong.²¹

The process of questioning potential jurors in this way is peculiar to the United States. In England, where the US jury system originated, no such process was ever used. Jurors were not quizzed about capital punishment. A juror who opposed capital punishment was free to decide the case based on opposition to capital punishment. Today, a few Caribbean island countries that retain capital punishment use juries, but they do not exclude potential jurors for their views about capital punishment. ²²

The screening of potential jurors in the United States began in the nineteenth century, first in Pennsylvania and New York. Challenges to the process in US courts have failed. In one case, however, the US Supreme Court said it would “assume that ‘death qualification’ produces juries that are more ‘conviction-prone’ than ‘non-death-qualified’ juries.” Despite this acknowledgment, the Supreme Court held “that the Constitution does not prohibit the States from ‘death qualifying’ juries in capital cases.”²³ Dissenting, Justice Thurgood Marshall said that death-qualified jurors have a “proprosecution bias” and are “more likely to believe that a defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defense, more mistrustful of defense attorneys, and less concerned about the danger of erroneous convictions.” Justice Marshall asserted, “The very process of death qualification focuses attention on the death penalty before the trial has even begun” and as a result “predispose[s] the jurors that survive it to believe that the defendant is guilty.”²⁴

Habeas Corpus

One other feature of American criminal law that consuls would learn as they became involved in capital cases is that convictions can be challenged even after they are confirmed on appeal. In these procedures, a broad range of defects in a conviction can be considered. Evidence that was not presented at the trial, or legal issues not presented there, can be raised. This is the procedure that lawyers for Faulder and Santana invoked in 1992 and 1993. These procedures are available in a state court where the person has been convicted in a court of a state. They are also available in a federal court for a state prisoner, if the state procedure does not produce a result.

In the federal courts, the procedure is called habeas corpus. It is a new legal action, a lawsuit filed by the convicted person against the person holding custody, typically a prison warden. Habeas corpus is a type of writ, meaning an order a court would issue, in this situation to the warden, commanding the warden to produce (habeas, “you shall have” in Latin) the person (corpus, “body” in Latin) to the court so that the court may ascertain the legality of the confinement. In the federal system, a convicted person files for a writ of habeas corpus in a US district court. Under a statute of the US Congress, the writ is available if the person is being held “in violation of the Constitution or laws or treaties of the United States.”²⁵ This mention of treaties provided an opening for claims under the Vienna Convention on Consular Relations.

Emergence of Human Rights

Another circumstance played a role in shaping the context for the capital cases involving foreigners. Nation-states were increasingly under pressure for how they treated suspects in their criminal justice system. The states of the world, in the aftermath of the atrocities of World War II, came together to pledge decent treatment to all persons. They regarded justice as a concern of the international community. The discussion of consular access in the International Law Commission, as we saw, was infused with human rights language. So too at the 1963 Vienna conference.

Procedures came into being whereby states could be called to account for violating rights. When it was founded after World War II, the United Nations set up standing institutions to deal with human rights. A United Nations Commission on Human Rights pressed states to do well by their citizens and anyone else. In 1976, a general treaty on human rights came into force. Elaborated by the United Nations, the International Covenant on Civil and Political Rights aimed at preventing the governmental misdeeds of the past. Due process of law was to prevail when anyone was tried for crime. All persons were to be treated with dignity. A system of monitoring was incorporated in the International Covenant on Civil and Political Rights, requiring states to make periodic reports before a monitoring body called the Human Rights Committee on how well they were complying. The International Covenant required equality of treatment regardless of race, language, or national origin. Those clauses were clearly implicated if a foreigner was accused of serious crime.

And the International Covenant, for the first time in a treaty, imposed strictures in the application of capital punishment. One clause in the International Covenant proclaimed that no one could be deprived of life “arbitrarily.” That clause required that procedures be consistent and fair. The same clause specified that capital punishment could be used only for the “most serious offenses.” It could not be inflicted on a pregnant woman, or on a person who was under the age of eighteen years at the time of the offense. Clemency procedures had to be available under domestic law so that factors that might militate against a death sentence in a particular case could be taken into account.⁴

In addition to efforts at the universal level, Europe and the Americas stuck their toes in the waters of human rights. Europe took the lead, elaborating a treaty called the Convention for the Protection of Human Rights and Fundamental Freedoms. It set up a human rights court whose edicts the states of Europe agreed to follow. In the Western Hemisphere, as we saw with the Santana and Fierro petitions, first a monitoring commission was established, and later a court.

Capital punishment became a target in human rights law. In Europe, a protocol was adopted in 1983 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. “The death penalty shall be abolished,” proclaimed the protocol. “No-one shall be condemned to such penalty or executed.”⁵ As Eastern Europe was drawn into European institutions from the early 1990s, capital punishment vanished in all of Europe.

In 1989 a protocol was adopted to the International Covenant on Civil and Political Rights, in which states promised to end capital punishment.⁶ Many states subscribed, and by the end of the century only a handful of countries were carrying out executions. All this activity set the stage for international pressure on the United States in death cases against foreign nationals. US diplomats abroad were put on the defensive as the United States became isolated in its use of the death penalty.⁷

And it was just at this period that the United States was trying to show that it could be party to human rights treaties. In the 1960s, when major human rights treaties were being ratified by scores of countries, the United States sat on the sidelines, largely out of concern that treaties would upset the balance of power between the federal government and the states, and in particular that they would subject the United States to international scrutiny over racial segregation. By the early 1990s, the United States was finding it increasingly uncomfortable to be outside these treaties. When it laid criticism on others for violating rights, the response often was to point out that the United States was a nonratifier. In 1992, the United States ratified the International Covenant on Civil and Political Rights, and in 1994 the International Convention to Eliminate All Forms of Racial Discrimination, another major treaty. US adherence opened the United States to being criticized as a treaty violator for consular access failings.

Extradition in Capital Cases

With the reintroduction of statutes on capital punishment in the 1970s, the United States bucked the international trend on the death penalty. Conflict with other countries over capital punishment was not long in developing. Capital punishment in the United States drew objection from other countries in extradition situations. Many countries were reluctant to extradite to the United States a person who might be executed. Extradition is normally handled with another country through a bilateral treaty. Treaty partners of the United States began to insist on a clause allowing them to refuse to extradite on a capital indictment. When these situations arose, the United States, to gain extradition, was forced to agree that capital punishment would not be sought against the person.

In one Texas case, capital punishment had to be taken off the table in order to gain extradition. A woman named Joy Aylor was arrested in Dallas in 1989 following the murder of her husband’s lover. Aylor was charged with hiring the killer. Released pending trial, Aylor fled to France. She was arrested there two years later, with the United States requesting extradition so that she could stand trial in Texas. France refused because Aylor was being charged with capital murder in Texas. After two years of negotiations, France surrendered Aylor, but only after Texas authorities agreed to forego the capital charge.⁸

A similar situation developed with a suspect in the United Kingdom. The United States was asking for the extradition of a man named Jens Soering, wanted on a capital murder charge in Virginia. The United Kingdom was willing to extradite, but Soering took the United Kingdom into the European human rights system. Soering’s claim was not that capital punishment itself would violate his rights, rather that the practice of isolating the condemned to separate facilities (a death row) as implemented in Virginia would result in inhuman treatment. The European Court took extensive evidence on conditions on Virginia’s death row. It concluded that the high level of confinement and isolation prevalent there constituted inhuman treatment. The European Court of Human Rights ordered the United Kingdom not to extradite Soering.⁹ Complying with the decision, the United Kingdom told the United States it would surrender Soering only if the capital aspect of the charge against him were dropped. The United States agreed. Following his surrender, Soering was tried and convicted in Virginia and sentenced to a term of imprisonment.

The Soering situation dramatized the extent to which the death penalty in the United States was coming under pressure from abroad. In extradition, a country that is asked to surrender a suspect normally does not examine conditions related to punishment in the other country. But in Soering’s case the European Court examined the Virginia death row. It let Soering present detailed evidence. The European Court was shocked by the high degree of physical confinement. “The size of a death row inmate’s cell,” it said, “is 3m by 2.2m. Prisoners have an opportunity for approximately 7½ hours’ recreation per week in summer and approximately 6 hours’ per week, weather permitting, in winter.” The court was also concerned that prisoners were sometimes held for periods of years in this situation prior to execution.

Article 3 is the provision of the European human rights treaty that prohibits “inhuman or degrading treatment or punishment.”

The Soering affair brought international pressure to bear not only on the United States but on its treaty partner, the United Kingdom. The United Kingdom would be acting unlawfully if it helped the United States carry out a death sentence. The reasoning of the European Court of Human Rights was that the United Kingdom would be on the order of an accomplice.

Another aspect of capital punishment was at issue in a 1993 extradition situation, and another international institution. Charles Ng was wanted in California on suspicion of multiple murders. In 1985 he fled to Canada. Ng was arrested there for an armed robbery. Once the United States became aware that Ng was in jail in Canada, it requested extradition so that he could be tried in California. Canada was willing to extradite, but before it did so Ng filed a complaint against Canada under the International Covenant on Civil and Political Rights. California at the time used a gas chamber to carry out executions. Ng told the Human Rights Committee, the body formed under the International Covenant to monitor compliance, that the California gas chamber caused unnecessary suffering, and therefore that if Canada surrendered him, Canada would contribute to inhuman punishment. Like the European human rights treaty, the International Covenant prohibits cruel, inhuman, or degrading punishment. While the Human Rights Committee was considering Ng’s petition, Canada surrendered Ng to California. The Human Rights Committee nonetheless decided the matter, saying that the surrender was unlawful.¹⁰ The Human Rights Committee agreed with Ng and told Canada that an extradition to the United States would violate Canada’s obligations under the International Covenant. Here again an international institution was scrutinizing death penalty practice in the United States and imposing obligations on a treaty partner of the United States. California later stopped using its gas chamber for executions after similar challenges in US courts.

Treaties Overriding Criminal Procedure Provisions

The proposition that a treaty prevailed over the law of a state was applicable not only to property-related disputes but to criminal prosecutions as well. The issue arose in extraditions, which are handled as we have already seen by treaty. Extradition is given on a request that an individual be surrendered for trial on a specific crime. When it is the United States requesting surrender, it would present evidence to show probable cause that the person committed that crime. The other state verifies that evidence before deciding whether to comply.

In several extraditions in the nineteenth century, prosecutors in the United States leveled new charges after the person was surrendered. In court, these persons challenged the new charges. In one of these cases a man was surrendered by Britain under a treaty calling for extradition, for trial on an Ohio charge. After the man was surrendered, the county prosecutor in Ohio added a new charge. The man challenged it as being invalid. The Ohio Supreme Court agreed with him that no new charge could be added. It allowed the man to invoke the treaty even though the treaty spoke only in terms of the obligation of Britain and the United States to surrender persons sought by the other on certain criminal charges.¹⁰ The treaty did not characterize a person being extradited as the bearer of rights. But the Ohio Supreme Court let the man invoke the treaty. Citing the US Constitution, the Ohio Supreme Court said that a treaty is

The treaty provided no specific remedy for a violation, but the Ohio Supreme Court understood that a remedy was in order, which it gave by annulling the new charge.

Three years later, the US Supreme Court cited the Ohio case when a similar issue came before it. Again, a person was surrendered by Britain under the treaty in the case of another person extradited from England. William Rauscher, an officer on a US vessel sailing on the Atlantic Ocean, killed a crew member during a voyage to England. Once the vessel arrived in England, the United States requested his extradition on a charge of murder. Britain complied and surrendered Rauscher. The charge was laid for violation of a statute of the federal government, since the act occurred on the seas, and Rauscher was brought before a federal district court. Instead of murder, however, Rauscher was charged with another offense, labeled infliction of cruel and unusual punishment. Rauscher objected that under the treaty he could be charged only with murder, the offense on which he was extradited. Like the Ohio Supreme Court, the US Supreme Court ruled that the treaty allowed trial only for the crime on which extradition was granted, and it gave Rauscher a remedy. It said that the other charge could not be levied against him.¹²

The proposition that individuals may invoke a treaty provision that gives a right carried over into the twentieth century. A case in the State of Washington involved an ordinance of the city of Seattle forbidding foreigners to function as pawnbrokers. A Japanese national was denied a pawnbroker license on the basis of the ordinance. A treaty with Japan gave Japanese a right to carry on trade in the United States on a par with US nationals. When the case went to the US Supreme Court, it ruled that the treaty prevailed over the Seattle ordinance. The Japanese national had legal standing to invoke the treaty, and under the treaty the ordinance could not be enforced against him. The treaty contained no provision about remedy. Nonetheless, the Supreme Court reversed a lower court decree denying Asakura a pawnbroker license, thereby giving him a remedy.¹³

The term “self-executing” came to be used for treaty provisions that a private party could invoke as the basis of a right. A 1961 case involved a US treaty with Serbia that entitled all nationals of Serbia to inherit on a par with US nationals. Oregon, by statute, permitted foreigners to inherit only if a US national would, in like circumstances, be entitled to inherit under the law of the other country. On the basis of that statute the Oregon Supreme Court refused to let the Serbian nationals inherit. In the view of the Supreme Court of the United States, the Oregon statute, as applied to these foreigners, was inconsistent with the treaty. Even though the treaty said nothing about remedy, the US Supreme Court reversed the Oregon Supreme Court and ordered that the property in question go to the foreigners.¹⁴

Taking States to Court

US law developed a mechanism the federal government can use if a state, or a local government within a state, acts in a way that puts the United States in violation of a treaty. The federal government can sue to force compliance. In a 1925 case, the federal government sued the City of Chicago to keep it from diverting Lake Michigan water in a way that put the United States in violation of a treaty with Britain that forbad unilateral diversion of waters of the Great Lakes.¹⁵ The Department of State has acknowledged that this US Supreme Court precedent would allow it to sue a local government for failing to comply with the Vienna Convention on Consular Relations. “The inherent authority of the United States to bring an action,” the Department of State told the US Supreme Court in one consular case, “stems from the constitutionally grounded primacy of the national government in the realm of foreign affairs and the need for the United States to be able to effectuate treaty obligations and speak with one voice in dealing with foreign nations.”¹⁶

In a 1975 case, the State of Washington had adopted legislation that impaired fishing rights protected to Native Americans under a treaty with the federal government. The federal government sued the State of Washington. The US Court of Appeals forced the State of Washington to stop enforcing its legislation, stating that Washington “may enact and enforce no statute or regulation in conflict with treaties in force between the United States and the Indian nations.”¹⁷

In two other cases, local authorities tried to collect real estate tax in violation of treaties dealing with diplomatic premises. In one of these cases, a town in the State of New York demanded payment of tax on a building owned by the Soviet Union and that was used to house its personnel accredited to the United Nations. Under a treaty with the Soviet Union, realty used for diplomatic or consular purposes was exempt from taxation.¹⁸ The US District Court ordered the town to stop trying to collect the tax from the Soviet Union.¹⁹ The US Court of Appeals affirmed the ruling.²⁰

In a similar scenario, the federal government sued to keep a county in Virginia from collecting tax on an apartment building purchased by the German Democratic Republic (GDR) to house personnel of its mission in Washington, DC. A treaty with the GDR exempted such properties from taxation. The US Court of Appeals ruled against the county, saying that the federal government is entitled to sue “to honor its treaty obligations to a foreign state.”²¹

Skittishness in the White House

When foreign governments began complaining about the execution of their nationals without observance of consular access, the Vienna Convention on Consular Relations seemed to require results at odds with the laws of the states of the United States. Political reality played a role. The president in the United States was Bill Clinton. The issue was a delicate one for him. Forcing states to comply with the Vienna Convention on Consular Relations would be at cross purposes with letting states carry out executions. Clinton had a personal history on the issue of capital punishment, plus a political posture that complicated his stance.

When Bill Clinton ran for president in 1992, he was Governor of the State of Arkansas. Early in his time as governor Clinton acted to stop executions when there was a substantial reason for doing so.²² But he lost his first bid for reelection as governor to an opponent who criticized him for opposition to capital punishment.²³ After a later successful bid for election as governor, Clinton’s approach on capital punishment changed.²⁴ When Clinton, still governor, was running for the presidency in 1992, a man came up for execution in Arkansas, and it fell to Clinton to decide whether to spare his life. There were strong indications of severe mental impairment in the man, a factor that often results in clemency. Clinton allowed the execution to go forward.²⁵ He allowed a second execution to be carried out, also during his presidential campaign. Clinton was in jeopardy as a candidate for president for being perceived as overly liberal. Capital punishment gave him an issue on which to show conservatism.²⁶ Public opinion at the time in the United States was running between 75 and 80 percent in favor of capital punishment.²⁷

Clinton promoted the use of capital punishment when he entered upon the presidency in 1993. Public sentiment was strong not only for capital punishment, but for harsher penalties for crime in general. In 1994 Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994, which allocated funds for additional law enforcement, created new federal offenses, and raised penalties for many existing federal offenses. One part of the 1994 Act was titled the Federal Death Penalty Act. It expanded capital punishment for homicides prosecuted federally by adding new circumstances in which homicides could qualify for the federal death penalty. As president, Clinton signed the Act into law.²⁸ The Federal Death Penalty Act did not yield many federal death penalty prosecutions, but its enactment reflected the political climate on capital punishment.

More significant in practical terms was the Anti-Terrorism and Effective Death Penalty Act, which Clinton signed into law as a federal statute in 1996. Another product of the public mood on crime, this new law set severe limits on the use of habeas corpus in a federal court to challenge a state court death sentence for violation of the US Constitution or a treaty. One restriction was that the Act allowed for filing only once. That meant that if a foreign national’s attorney filed a habeas corpus petition in a federal court but did not raise a Vienna Convention claim, no new petition on that subject could be filed. The US Constitution proclaimed, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”²⁹ That statement had been thought to mean that anyone being held in violation of the Constitution or a treaty could seek redress. The new law gave only one opportunity.

A second restriction was that the Act raised the bar for gaining redress. The Act said that a federal court should grant a writ of habeas corpus only if the state court had ruled contrary to “clearly established federal law,” meaning the law of the Constitution or treaties as previously ascertained by the federal courts, or if the state court had made an “unreasonable determination” of the relevant facts.³⁰ Under this provision, the Act would be applied by the US Supreme Court to allow habeas corpus only to correct “extreme malfunctions in the state criminal justice systems.”³¹ The result was a decline in reversals of the decisions of state courts in capital cases.³²