Litigation Before the International Court of Justice in Mexico v. United States
Presented by Sandra Babcock
November 13, 2003
Summary of Remarks
Increasing Use and Acceptance of International Law Principles in Death Penalty Cases
Sandra Babcock, an internationally known human rights lawyer and advocate, addressed the integration of international law and human rights principles into the United States justice system, particularly in death penalty cases. While many attorneys and advocates are skeptical about using international law arguments in their cases, Babcock noted that judicial receptivity to these arguments appears to be on the increase. Highlighting this trend are recent decisions of the Supreme Court in Atkins v. Virginia, where the high court expressly considered the opinion of the world community in its decision declaring executions of mentally ill defendants unconstitutional, and in Lawrence v. Texas, where the Court referred to a European Court of Human Rights ruling in striking down a Texas anti-sodomy law.
History of Litigation Related to Article 36 of the Vienna Convention on Consular Relations
Babcock also addressed how international law affects the United States' practice of executing foreign nationals who commit crimes in the United States. In particular, Babcock described the history of litigation around Article 36 of the Vienna Convention on Consular Relations, which requires that whenever a foreign national is detained authorities in the arresting country must inform the defendant of his or her right to contact a consulate and request assistance. The United States is a party to the convention and thus is bound by its terms. Several states, Texas in particular, have ignored the Vienna Convention, failing to notify defendants of their right to contact and failing to notify foreign consulates that their nationals were on death row. Paraguay brought a case to the International Court of Justice (ICJ) requesting a remedy for treaty violations, but failed to pursue the cases when the United States ignored ICJ preliminary orders and executed the defendants. The United States issued an apology for the treaty violations. Germany also brought a case to the ICJ when two of its nationals were sentenced to death, and while, again, both were executed, Germany did not drop its case. The German government's persistence resulted in a final ruling from the ICJ declaring that the United States was in violation of Article 36 and declaring that an apology was an insufficient remedy. The ICJ required "review and reconsideration" of cases in which the right to consular contact under Article 36 had been violated.
Mexico's Case Against the United States for Continuing Violation of the Vienna Convention
Babcock noted that while these cases were working their way through the ICJ, 54 Mexican nationals had been sentenced to death in the United States-in none of the cases had there been full compliance with Article 36. Mexico determined to bring its own case before the ICJ on behalf of its nationals, three of whose execution dates were about to be scheduled. Mexico, represented by Babcock, was successful in winning a stay of execution for the three Mexican nationals whose execution dates were imminent as well as the opportunity to argue its full case before the ICJ. It remains unclear whether states will abide by the international court's order to stay the executions; however the Oklahoma Attorney General recently expressly requested that no execution date be scheduled for one of the Mexican nationals in light of the ICJ's action.
Babcock said that despite the cases before the ICJ, current compliance with Article 36 remains spotty across the United States, primarily because there is no penalty for noncompliance. The resolution of Mexico's case will no doubt have an important impact on how the United States addresses this issue.
Sandra Babcock is an attorney in private practice in Minneapolis, Minnesota. Over the last decade, she has been a leading advocate for the application of international human rights norms in domestic criminal proceedings, particularly in death penalty cases. She has argued before the Inter-American Commission on Human Rights, the Inter-American Court on Human Rights, and the International Court of Justice. Currently, she directs the Mexican Capital Legal Assistance Program, a pioneering project funded by the Government of Mexico to assist its nationals in capital cases at trial and on appeal. Through this Program, she has provided litigation support to attorneys in over 80 capital cases involving Mexican nationals, and routinely appears as Mexico's counsel in state and federal courts around the country. She is also Mexico's counsel in the case of Avena and other Mexican Nationals (Mexico v. United States), a case brought by Mexico in the International Court of Justice on behalf of 54 Mexican nationals on death row under the Optional Protocol to the Vienna Convention on Consular Relations. Ms. Babcock has written several articles on the subject of international law and the death penalty. She received her B.A. in International Relations from Johns Hopkins University in 1986, and her J.D. from Harvard Law School in 1991.
This brown bag presentation provided an overview of the proceedings before the ICJ and discussed prospects for enforcing any favorable judgment in U.S. courts. The discussion also touched on the relevance of international law in capital proceedings involving U.S. citizens. One CLE credit granted.