In Texas, a Death Penalty Showdown With International Law

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The state is defying international courts, the UN, and the Obama administration by denying Vienna Convention rights to a Mexican prisoner. Does it matter?

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On Thursday, Texas is scheduled to execute its seventh prisoner this year. While anti-death penalty advocates have rallied against all the executions, this particular case has also drawn protests from former judges and diplomats, the UN, and the Obama administration -- not out of opposition to capital punishment, but concern for America's place in the international community. As Thursday draws nearer, mounting pressure on Texas to stay the execution underscores both the U.S.'s global isolation in its commitment to the death penalty and the highly charged domestic politics of navigating international law.

Humberto Leal Garcia, Jr. is a Mexican citizen who was sentenced to death by a Texas jury in 1994 for rape and murder. Texas provided Garcia with court-appointed lawyers, but at no point during his arrest or trial did the state inform him of his right to contact the Mexican consulate, which could have provided him legal aid. This right is guaranteed by the Vienna Convention on Consular Relations, signed by the U.S., Mexico, and 171 other nations. In its treatment of Garcia, Texas was in violation of international law.

Whether or not Garcia's sentencing would have been different with the help of Mexican lawyers, Texas's decision puts the U.S. in a difficult position abroad -- many worry that, if we do not respect the consular rights of foreign nationals, other countries will have less incentive to respect those of our citizens.

Euna Lee, an American journalist who, along with her colleague Laura Ling, was held captive in North Korea for five months in 2009, has called the Vienna Convention a "lifeline" that helped secure her release. Lee remembers the "sense of security" she gained from knowing that "someone outside of North Korea was monitoring my case. The prompt consular access, I believe, protected me from any physical mistreatment by my captors."

Even Iran has given consular access, if briefly, to the two American hikers in its custody, something Texas has denied Garcia. And during the Iranian hostage crisis in 1979, the U.S. sued Iran in the International Court of Justice for violating the same Vienna Convention that Texas is now defying. The ICJ ruled in America's favor, just as it would rule in Mexico's favor 24 years later, when the Mexican government sued the U.S. for sentencing Garcia and 50 other Mexican citizens to death without honoring their consular rights.

That 2004 decision has reverberated throughout the U.S. legal system, with President George W. Bush instructing Texas to review the convictions and to reevaluate the sentencing of Jose Medellin, a Mexican citizen in the same position as Garcia. In 2008, the Supreme Court ruled that states were not obligated to comply with the Vienna Convention, and that only Congress -- not the president -- could force them to obey the treaty. Later that year, Medellin was executed.

With Texas barreling toward another execution on Thursday, Congress will not be able to intervene in time for Garcia. Last Friday, the Obama administration asked the Supreme Court to stay the execution until Congress had time to vote on legislation that would require states to comply with the Vienna Convention, thus obligating Texas to reevaluate Garcia's case. Solicitor General Donald Verrilli, Jr. stressed the diplomatic implications of the execution -- that compliance with international treaties helps the U.S. protect its citizens abroad and advance its foreign policy interests. Backtracking on a major global agreement, some worry, could puncture U.S. integrity in future international negotiations, potentially making other countries less willing to sign onto treaties they fear the U.S. may not honor.

Also on Friday, the UN high commissioner for human rights solicited Texas Governor Rick Perry on Garcia's behalf. So far, Perry has not wavered and the Court has not yet responded.

The international reaction to Garcia's case demonstrates just how isolated the U.S. is in its support of the death penalty. According to Hands Off Cain, an anti-death penalty organization, only 43 of the nearly 200 countries that participate in the UN routinely use capital punishment. In the U.S., 34 states execute prisoners.

Texas's commitment to its sentencing, meanwhile, signals the fundamental distaste many Americans seem to feel for international governance. Last year's Tea Party wave ushered in a series of state legislature attempts to ban the application of foreign legal codes and international mandates in U.S. courts. Though most of these measures did not pass, they provided a rallying point in many conservative circles. As Governor Perry contemplates a run for the Republican presidential nomination, a high-profile rejection of the international community and the Obama administration may be one of his most powerful assets.

The Garcia case has also revealed an uncomfortable truth about international law -- while often influential, its scope is fundamentally limited, especially in the U.S. When the ICJ directly instructed Texas to change its policies, the state refused, and the Supreme Court sided with Texas over its international cousin. In principle, even-handed arbitration of international disputes sounds reasonable. But, in practice, geopolitics -- and, sometimes, domestic politics -- win the day. After all, the U.S. has so far been able to brush aside the Vienna Convention without sacrificing its own interests.

Garcia's execution may spark enough outrage to spur other countries to stand up to the world's superpower -- or it may, like Medellin's, be archived as an interesting legal dispute with little real-world consequence.

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Nicole Allan is a former senior editor at The Atlantic.

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