Urge Congressional Leaders to Address Issue of Mexican Nationals on Death Row

Marcia Coyle
The National Law Journal
July 24, 2008

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The current president and nine past presidents of the American Society of International Law have written to congressional leaders urging them to take legislative action to resolve a treaty dispute between Mexico and the United States over Mexican nationals on death row in the U.S.

Their action was prompted by the U.S. Supreme Court's decision earlier this year in Medellin v. Texas, involving one of 51 Mexican nationals on death row who did not receive access to his consular officials as required by the Vienna Convention on Consular Affairs, to which the United States is a party. The first of these Mexican nationals is scheduled to be executed on Aug. 5 in Texas.

"Congressional action to ensure compliance with our undisputed international obligations is critically important," said Freshfields Bruckhaus Deringer partner and ASIL President Lucy Reed. "At stake are important protections of Americans abroad as well as our reputation as a country that lives up to its international agreements and expects others to do the same."

The International Court of Justice held in 2004 that the United States must provide "review and reconsideration" of the cases in question, in order to weigh the impact of the Vienna Convention violation. Despite efforts by the Bush administration to comply by directing state courts to undertake the review and reconsideration, the Texas courts refused. In the Medellin decision, the Supreme Court agreed with the Bush administration that the ICJ judgment is binding on the United States, but the justices held that without independent action by the states, compliance could be achieved only through congressional action.

Because of the Aug. 5 scheduled execution of Jose Medellin, Mexico returned to the ICJ and, in a new decision, that court held that the United States should take "all measures necessary" to ensure that the Mexican nationals are not executed prior to a final ICJ decision interpreting its original judgment.

Reed, along with all living past presidents of the ASIL (José Alvarez, Charles N. Brower, James H. Carter, Thomas Franck, Louis Henkin, Arthur W. Rovine, Anne-Marie Slaughter, Peter D. Trooboff, and Edith Brown Weiss) signed letters sent to the Senate and House leaders of both parties and to the chairs and ranking members of the Judiciary and Foreign Affairs committees of the House and Senate.

In their letters, the ASIL presidents emphasize that "the United States is poised irreparably to violate the Vienna Convention and a judgment of the ICJ" and that doing so "would set a dangerous precedent, undermining the reciprocal Vienna Convention rights that American citizens are entitled to enjoy while traveling, living, or working abroad."

Additionally, the letters caution that by executing the Mexican nationals without first giving their cases the review and reconsideration called for by the ICJ, the United States would damage its reputation "as a nation that respects its international legal obligations and holds others to the same high standard."

Legislation to bring the United States into compliance with the treaty obligation has been introduced in the House, but there is little time left in the congressional session for action.

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