By Erica Trachtman, J.D. Candidate

On July 7, 2011, despite pleas from top officials of the Obama administration,[1] Texas executed 38-year-old Mexican national Humberto Leal Garcia.[2] Given that Texas is the nation’s most active death penalty state,[3]Leal’s execution for the horrific rape and murder of a San Antonio teen in 1994[4] may not seem unusual or even undeserving. However, Leal’s execution in fact presents broad implications for U.S. foreign policy interests and jeopardizes the safety of many Americans abroad. The omission was slight but significant, and apparently not all that uncommon: following his arrest, Leal was never informed of his right to seek assistance from the Mexican consulate, a right guaranteed to him by Article 36 of the Vienna Convention.[5] Although the conservative Justices have expressed doubt that Leal’s execution will be the catalyst for grave international consequences,[6]his death continues to undermine the Vienna Convention’s already eroded purpose, to “contribute to the development of friendly relations among nations.”[7]

The Vienna Convention on Consular Relations is a treaty drafted in 1963 in Vienna and put into effect in 1969.[8] Article 36 of the Convention outlines the treaty obligations for treatment of detained foreign nationals.[9] It dictates that if a person detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detainee] of his righ[t]” to request assistance from the consul of his own state.[10] The Optional Protocol, a corresponding treaty, directs that the International Court of Justice (ICJ) shall be the venue for the resolution of disputes arising out of the interpretation or application of the Vienna Convention.[11] However, in March 2004, after the ICJ found that the United States had violated its obligations under the Vienna Convention with respect to fifty-one Mexican nationals (including Leal),[12] the United States gave notice of withdrawal from the Optional Protocol.[13] Whether that withdrawal had any effect on the binding status of the U.S.’s pre-withdrawal obligations has been an ongoing source of contention within the Supreme Court.

Four years after the ICJ’s ruling, in a decision emphasizing the limitations on the President’s power to convert the Vienna Convention from a non-self-executing treaty into a self-executing one,[14] the Court rejected the United States’ mandatory compliance with the ICJ’s judgment and the notion that ICJ decisions could become automatically enforceable domestic law.[15] In his dissent, Justice Breyer used a seven-factor test to determine that the ICJ decision should be binding and warned that the majority’s holdings increase the likelihood, “[O]f worsening relations with our neighbor Mexico, . . . putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the rule of law principles that we preach.”[16] As a result of the Court’s decision, Jose Ernesto Medellin, another Mexican national with a background extraordinarily similar to that of Leal, was executed by the state of Texas.[17]

Since the Court’s 2008 decision, a few minor but crucial steps have been taken to pass legislation that would enable Leal and other similarly situated individuals to have a hearing examining their Convention violations, the very remedy suggested by the ICJ. After exhausting all other state and federal remedies for post-conviction relief, Leal petitioned the court to stay his execution so that Congress could consider whether to enact the recently introduced legislation implementing the ICJ’s prior decision.[18] Nonetheless, just hours before his execution by lethal injection, the Court, in a five-to-four decision split down party lines, denied Leal’s application.[19] Writing for the majority, Justice Scalia was unconvinced by the pending legislation, stating “Our task is to rule on what the law is, not what it might eventually be.”[20] Scalia expressed further skepticism that any such legislation was a high priority on the congressional radar.[21]

Justice Breyer, again writing for the dissent, declared unequivocally that he would grant the stay.[22] He noted that in reaching the contrary conclusion, “[T]he Court . . . substitutes its own views about the likelihood of congressional action for the views of Executive Branch officials who have consulted with Members of Congress. . . .”[23]

In his brief for the United States as Amicus Curiae supporting the stay, the Solicitor General emphasized that Leal’s execution would place the United States in irreparable breach of its obligations under international law. His statements, deemed “free ranging assertions” by the majority, were reinforced by a brief filed by the Government of Mexico. In that brief, Mexico’s leaders indicated that declining to stay Leal’s execution “would seriously jeopardize the ability of the Government of Mexico to continue working collaboratively with the United States on a number of joint ventures, including extraditions, mutual judicial assistance, and our efforts to strengthen our common border.”[24]

Immediately following Leal’s execution, a group gathered in Guadalupe, Mexico and burned a t-shirt with an image of the American flag in protest.[25] Although the long term effects of the execution of Leal and others claiming Vienna Conventions violations remain to be seen, Congress must move forward with enacting the legislation that would make such violations examinable by U.S. courts. Otherwise, by ignoring its treaty obligations, the U.S. continues to risk the safety of Americans abroad, the health of an already fragile globalized economy, and the international respect and credibility that the nation once garnered.