International Law, the United States of America and Capital Punishment

By Schabas, William A. | Suffolk Transnational Law Review, Summer 2008 | Go to article overview

International Law, the United States of America and Capital Punishment


Schabas, William A., Suffolk Transnational Law Review


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. …

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