Germany's
appeal on behalf of LaGrand complemented years of human rights activism
by U.S. law professors and attorneys. Twenty-two NGOs and individuals
from nine countries wrote Secretary Madeline Albright urging her to raise
the consular issue with Arizona officials. [15]
Since adoption of the Universal
Declaration of Human Rights in 1948, activist law professors and civil
rights lawyers have pressed U.S. courts to enforce international norms.
U.S. judges have been most responsive when foreign nationals brought tort
claims against officials of another government and the federal executive
raised no objection. U.S.
judges have been quite reluctant however to enforce international human
rights law against their own government, and they typically defer to the
President and Congress. The Supreme Court rejected Amnesty International's
interpretation of the 8th Amendment as incorporating the international
ban on executing juvenile killers.
[16] Efforts to enforce an ICJ judgment
that the U.S. was violating international law failed when U.S. District
and appellate courts declined to enjoin further military aid to Nicaraguan
rebels. [17]
NYU law professor Thomas Franck edited a text urging U.S. judges
to show greater respect for international law and less deference to executive
authority in foreign policy. [18] With Ford Foundation support, Franck invited
Supreme Court Justice Sandra Day O'Connor to co-host a 1995 conference
on International Law in National Courts.
Justices Stephen Breyer and Ruth Bader Ginsburg attended along
with three ICJ judges, and leading tribunal members of U.N., human rights,
and national courts from Europe, Asia, and the Americas. Justice O'Connor also facilitated American Society of International
Law training sessions for judges, joined the ASIL Executive Council, and
publicly urged attorneys and judges to improve their understanding of
international law. [19]
With substantial U.S. financial support
and leadership, the Organization of American Supreme Courts was created
to promote the rule of law, improved judicial administration, and transnational
cooperation by high court judges. Justices Rehnquist, O'Connor, Breyer,
Kennedy, and Scalia all participated in the 1995 inaugural meeting.
[20] The U.S. Judicial Conference created a
Committee on International Relations that offers assistance to judiciaries
in developing countries. The
Justices meet regularly with their counterparts on the European Court
of Justice.
[21] The European Union submitted an amicus
curiae brief when the court was reconsidering
execution of the mentally retarded.
In the mid 1990s death penalty
abolitionists began invoking the Vienna Convention on behalf of more than 70 foreign nationals on death row from 26 countries.
Mexicans were the largest national group, about half the total. Ohio State University law professor John Quigley offered
counsel to Mexico's government, filed amicus curiae briefs in three cases challenging states' failure to
provide notice of consular assistance, and publicized his arguments in
a half dozen law journal articles. [22]
The American branch of the Inter-American
Law Association, Amnesty International, Human Rights Watch, Minnesota
Advocates for Human Rights and other activists all took up the issue.
Amnesty International Canada's
Death Penalty coordinator Mark Warren posted a comprehensive Information Center on the internet and provided
vital information to defense counsel. [23]
U.S. judges have dismissed consular notice claims on numerous grounds--procedural
default, harmless error, state sovereign immunity, the last in time rule,
and lack of individual standing. Between 1993 and 1998, nine foreign nationals,
seven from the Americas, were executed in six states. After Virginia and Texas executed two Mexicans in 1997, their
government requested an advisory opinion from the Inter American Court
of Human Rights (IACHR). Several
U.S. human rights nongovernmental organizations (NGOs) and six interested
governments, including three with nationals on U.S. death row, successfully
urged the court to advise that states failing to provide consular notice
could not execute a foreign national.
Counsel for the State Department argued that the Vienna convention
"does not require the domestic courts of State parties to take any
actions in criminal proceedings, either to give effect to its provisions
or to remedy their alleged violation." [24]
At the U.N. General Assembly, the U.S. cast
the only vote against Mexico's proposal that a Migrant workers treaty
take note of the IACHR advisory opinion “regarding
the Right to Information about Consular Assistance within the Framework
of Due Process Guarantees."
[25] The U.S. has not ratified the American
Convention on Human Rights or accepted the court’s jurisdiction and objected
that the “advisory” process was being improperly used.
As a member of the Organization
of American States, the U.S. is subject to review by the Inter American
Commission on Human Rights (IACHR). NGOs successfully petitioned the Commission
to oppose the execution of juvenile killers, but the U.S. disregarded
that opinion.
[26] U.S. attorney Sandra Babcock helped
a Canadian national on Texas death row with an IACHR petition claiming
a denial of the right to consular notice. Professor Richard Wilson's American
University law school students in a human rights clinic helped South American
nationals petition the IACHR after U.S. courts rejected their international
law claims. Human rights
activists in Germany pressed their government to take up the LaGrand case.
NGOs also petitioned the Special Rapporteur on Summary and Arbitrary Executions
of the U.N. Commission on Human Rights who visited the U.S. in 1997 and
mentioned LaGrand in his report. [27]
Commission opinions supporting
death row inmates may cause the U.S. political embarrassment, but have
not been accepted as legally binding in U.S. Courts or blocked any executions. An International Court of Justice decision
might have greater impact. The
U.S. had accepted the court's jurisdiction to decide disputes arising
under the Vienna Convention and had won a celebrated ICJ judgment against
Iran when consular officials were taken hostage. The government had complained when El
Salvador failed to provide consular notice for detained U.S. nationals.
[28]
A year before Germany's LaGrand
petition to the ICJ, Paraguay had a similar case argued on its behalf
by New York attorney Donald Donovan and
two associates from Debevoise and Plimpton. Virginia officials failed
to inform Angel Breard of his right to assistance from Paraguay's consulate.
The ICJ issued provisional measures seeking a delay in his execution until
the court had time to review the claim.
The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; [29]
Despite an appeal by Secretary of State Albright, Virginia's governor refused to grant a reprieve. After Breard was executed, the ICJ heard oral argument from the U.S. agent and from Donovan as Paraguay's agent. The U.S. subsequently apologized for its violation of the Vienna Convention; Paraguay withdrew its complaint before the ICJ had decided whether Breard’s execution violated the treaty.
Answer Self Assessment Questions III. Numbers 11to 16
