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?