International law, the United States of America and capital punishment.

• Author: Schabas, William A.
• Position: The Medellin v. Texas Symposium

Medellin v. Texas is the latest act in a judicial drama involving the United States that began in 1998, when Paraguay filed an application in the International Court of Justice (ICJ) on behalf of one of its nationals who was in imminent threat of execution in Virginia. The litigation was based on allegations that U.S. law enforcement officials had not provided Angel Breard, a Paraguayan citizen, with information about the right to consular assistance, as guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR). (1) Although there was an order by the ICJ for provisional measures, (2) the case was never heard on the merits, and Paraguay discontinued its application.

A year later, Germany produced a similar claim before the Court. This time, there was a finding against the United States, based upon its failure to comply with an order from the Court that the execution be stayed during the international proceedings and that the United States had violated the VCCR. (3) Mexico then followed suit, invoking the rights of fifty-four of its citizens on death row in the United States. One of those individuals was Jose Ernesto Medellin. Mexico was successful at the ICJ, (4) but for complex reasons involving the relationship between international law and the courts of the United States, the protection of Medellin's rights as affirmed by the World Court has not been a straightforward matter.

The Medellin case before the courts of Texas and the Supreme Court of the United States, like the three ICJ cases filed by Paraguay, Germany and Mexico, concerns a cluster of issues involving due process, treaty interpretation, and the implementation of international law at the domestic level. But the litigation has also taken on considerable importance among governments, scholars and human rights activists for whom the abolition of capital punishment is a primary and possibly paramount concern. Indeed, most casual observers would probably consider that the U.S. practice of capital punishment is at the core of these disputes, and they would be surprised to note its virtual absence in the pleadings. The late Joan Fitzpatrick, writing about the German application at the ICJ, said it "is, and at the same time is not, a death penalty case." (5) Certainly, nobody can have much doubt that the issue of capital punishment was relevant to the decisions by Paraguay, Germany and Mexico when they chose to challenge the United States in the ICJ. Presumably, all three states have nationals serving lengthy prison sentences in non-capital cases in the United States, but they do not appear to have ever seriously contemplated taking action based on the VCCR in such cases.

Nevertheless, the German foreign ministry apparently gave strict instructions to its counsel in the LaGrand case that they were to avoid making an issue of capital punishment. Berlin's opposition to capital punishment as practiced by the United States is well known, and had figured in diplomatic exchanges both before (6) and after (7) filing of the application before the ICJ. West Germany abolished the death penalty in 1949 and, since then, has been at the forefront of international efforts to condemn the practice. (8) In the provisional measures order, the ICJ observed carefully that the case did not concern "the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes." (9) Only Judge Oda spoke to the point, somewhat indirectly, noting in his individual opinion that "if Mr. Walter LaGrand's rights as they relate to humanitarian issues are to be respected then, in parallel, the matter of the rights of victims of violent crime (a point which has often been overlooked) should be taken into consideration." (10)

Although the issue of capital punishment has also remained on the periphery of the Mexican cases, materials filed by the Mexican government before the ICJ refer in some detail to abuses that take place in the practice of the death penalty within the United States. In its application in Case Concerning Avena, Mexico alluded to the issue when it justified its intervention explaining that the consular function "can make the difference between life and death for Mexican nationals prosecuted for capital crimes." (11) It noted:

Particularly in capital cases, given the gravity of the penalty at stake and the crucial need for competent defence counsel, Mexico instructs its consular officers to monitor and support counsel's efforts, to communicate regularly with the defendant and his relatives, and to attend judicial proceedings. Often, Mexican consular officers provide funds and logistical support to assist defence counsel in capital cases by helping to gather evidence, thoroughly investigating the facts, and obtaining expert testimony. If necessary, Mexico attempts to secure more qualified defence counsel for its nationals. Mexico's established policy, in a word, is to provide extensive, meaningful assistance to its nationals prosecuted for capital offences. (12) Mexico explained that in September 2000, it had formed the Mexican Capital Legal Assistance Program, whose purpose is to enhance the ability of Mexican consular officers to assist capital defendants. (13) Attorneys for the project, according to Mexico, "played a decisive role in preventing the imposition of the death penalty in 27 cases ... Often, program attorneys have raised claims and emphasized issues of international law that would otherwise have been overlooked by defence counsel inexperienced in representing foreign nationals." (14)

In its memorial, Mexico explained that the fair trial guarantees that Article 36 of the VCCR seeks to protect apply "with special force in capital proceedings, which, given the irreversible character of the death penalty, require the most rigorous enforcement of procedural safeguards." (15) Mexico's memorial also made significant reference to academic studies opposed to capital punishment in the United States, including those demonstrating a danger of racial bias in imposition of the death penalty, something Mexico said was a genuine concern for its nationals. (16)

The link between fair trial issues and the question of capital punishment per se is an important one in international human rights law. In a 1999 Advisory Opinion, the Inter-American Court of Human Rights (Inter-American Court) insisted that failure to respect the right to information about consular assistance, as enshrined in the VCCR would prejudice the due process rights of foreign nationals. In circumstances where the death penalty was threatened, this could thereby violate the human right not to be deprived of life arbitrarily. (17) Although the UN Human Rights Committee (UNHRC) has not addressed the VCCR directly, its case law frequently insists that a violation of the right to a fair trial in a capital case also amounts to a threatened breach of the right to life. (18) The Inter-American Commission on Human Rights (IACHR) has made similar pronouncements in a series of cases concerning failure to respect Article 36 of the VCCR in death penalty cases. (19)

Capital punishment has been an issue in international law since the beginning of the UN. In fact, even before the UN began to address the question in the context of elaborating its initial human rights instruments, the death penalty manifested itself in extradition treaty provisions by which states made mutual legal assistance and especially extradition conditional on assurances not to impose the death penalty. (20) The U.S. government is regularly engaged by international law with respect to capital punishment. Avena and Medellin are only among the most recent examples in a thick and clearly ongoing dossier. This article reviews the capital punishment debate in international law as it has specifically concerned the United States.

1. ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

   Within the UN system, the first important discussions of the issue of capital punishment took place in 1947 and 1948, in the context of the drafting of the Universal Declaration of Human Rights (Universal Declaration). A central figure in that process was Eleanor Roosevelt, who represented the United States in the Commission on Human Rights (UNCHR), a body of which she was elected chair. She also headed the U.S. delegation to the Third Committee of the General Assembly, where the final draft of the Universal Declaration was debated before its final adoption in the plenary assembly on 10 December 1948. (21) As a "common standard of achievement," to borrow the words of its preamble, the Universal Declaration set a benchmark of fundamental norms. It was largely based upon national constitutions in force at the time of its adoption, including the U.S. Bill of Rights. Nevertheless, the drafters of the Universal Declaration went beyond mere codification and engaged in a process of progressive lawmaking. The success of their endeavor is evidenced by reference to the Universal Declaration in more recent unanimous human rights resolutions of the UN General Assembly, such as, the Helsinki Final Act, (22) the Vienna Declaration and Program of Action, (23) and a range of widely-ratified human rights treaties. (24) Sixty years after its adoption, the Universal Declaration retains all of its relevance. We now quarrel only about its interpretation.

   The Universal Declaration makes no mention of the death penalty. It does, however, enshrine the protection of the right to life in Article 3: "Everyone has the right to life, liberty and security of person." (25) As far back as 1942, U.S. State Department officials had given consideration to an international bill of rights as part of their scheme for the post-war UN organization. A draft of the Universal Declaration, based on the American Bill of Rights, the French Declaration des droits de l'homme et du citoyen, the English Bill of Rights, the post-World War...