On January 22nd, 2014, Texas executed a Mexican national, Edgar Arias Tamayo, who was sentenced to death for the murder of a police officer in 1994. Texas has now executed 509 individuals since 1977. However, this execution brought forth protests and attention from the Mexican government and U.S. Secretary of State John Kerry. They urged Texas Governor Rick Perry and Attorney General Greg Abbot to delay the execution. Why? Those against this execution claimed it violated International Law under Article 36 of the Vienna Convention on Consular Relations. In addition, Kerry worried this “could impact the way American citizens are treated in other countries. This Convention sets out guidelines on how authorities must act when foreign nationals are arrested or detained.
What does Article 36 say? Under Article 36 of the VCCR, local authorities must notify all detained foreigners “without delay” of their right to have their consulate informed of their detention. The U.S. ratified the VCCR without reservations in 1969, thus agreeing to abide by this. Unfortunately, many people are claiming that Mr. Tamayo was not granted this right and as a result was deprived of a fair trial. Additionally, the Mexican Government claim the U.S. never provided Mr. Tamayo a judicial review ordered by the International Court of Justice(ICJ) in March 2004, which ruled that the U.S. violated Article 36. In 2005, the U.S. withdrew from the Optional Protocol of the VCCR, which provides jurisdiction in the ICJ. Thus, the U.S. does not have to abide by their decisions. The U.S. has taken the position that when Article 36 is not adhered to, the rights of the sending and receiving state, not the foreign individual, are violated, therefore no judicial remedy required. There are currently 50 other Mexican citizens on death row, in the U.S., who the ICJ ordered to have their cases reviewed due to the violation of their Vienna Convention right.
The execution was actually delayed on the 22nd when the U.S. Supreme Court considered the appeal to keep Mr. Tamayo away from the death chamber. However, this appeal was denied. Nevertheless, there still seems to be no deterrence in not providing foreign nationals the right to consular.
What should be done? What remedy, if any, should be given to foreign nationals who are not given their right to consular? Are American citizens in danger if they are arrested abroad in a country that dislikes how we handle these situations?
Picture: MSNBC
Sources: VCCR Treaty; ICJ; Amnesty.org
It is apparent that the US signed and ratified the VCCR, and therefore it has fulfill its obligations under the treaty, specifically under Article 36 regarding the case at bar. If the allegations stating that “Mr. Tamayo was not informed about his right to have a counsel and as a result was deprived of a fair trial” were true, then there would be no question that the treatment against Mr. Tamayo is in violation of both domestic and international law. Regardless of being foreign or a US citizen, everyone has a right to a fair trial. If this right is not provided, then there should definitely be remedies available to those people who were deprived of their rights. Judicial review by the ICJ might be one of those options, but as it is mentioned, the US has no obligation to do this. However, I believe that the US should allow, especially in the case of foreign national, a judicial review by the ICJ for foreign policy reasons. I would not necessarily go further and say that this treatment by the USA against foreign defendants would put American citizens around the world in danger, but it can certainly be considered as one factor among others.
Respect towards the international community is something that should be considered of great importance to the United States. Although the U.S. has withdrawn from the Optional Protocol, the fact remains that every individual accused of a crime has a right to a fair and just trial. By not alerting an individual of all their rights while detained, they are being deprived of assistance, which they are entitled to. Those taken into custody and restrained are already losing many of their freedoms as punishment for the potential crime they have committed. This action completed by the U. S. could have consequences against U.S. citizens who travel abroad and are accused of committing crimes. The fact that the U.S. is failing to comply with international standards only leaves the door open for other countries to follow in its footsteps.