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Vienna Convention, Once Again

The State of Texas intends to execute Edgar Arias Tamayo at 6:00 p.m. CST today, which is about five hours from this writing. Tamayo is one of the murderers whose case was included in the International Court of Justice (ICJ) case of Mexico v. United States, more commonly known as the Avena decision.  The issue in these cases has to do with the failure of the police to advise an arrested foreign national of his right to have the consulate notified, as required by the Vienna Convention on Consular Relations.  The AP has this story on the objections of the Mexican government.  Update:  Michael Graczyk has this story for AP on the case, including the Fifth Circuit's rejection of Tamayo's Atkins claim.  Update 2:  Tamayo was executed.  See later post.

As of this time, a certiorari petition is before the Supreme Court as case No. 13-8358, and a stay application has been filed as No. 13A762.  The Supreme Court denied relief in similar circumstances in 2011 in the Leal case, and nothing has changed since.  See this post at that time.

The problem is considerably more complex than is commonly perceived.  In a nutshell, I believe the United States should comply with the decision of the ICJ in the cases actually before it in Avena, which includes Tamayo, and not otherwise.
The Vienna Convention provides that rights under it must be asserted in accordance with the law of the host country.  In the United States, that includes the law of procedural default.  Generally, when the state provides a forum to raise objections to a judgment, any objections that can be raised must be raised or else are defaulted.  It is the "speak now or forever hold your peace" rule.  Defaulted objections generally cannot be raised in later reviews of the case, with certain exceptions, one of which is actual innocence of the crime.

This rule applies to the most fundamental constitutional rights, and there is no good reason not to apply it to treaty rights as well.  The United States Supreme Court got this right in Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), and the International Court of Justice got it wrong in the Avena case.

Nonetheless, at that time the United States was a party to the Optional Protocol, which required us to abide by ICJ decisions even if they were wrong.  (We have since withdrawn.)  Having given our word in the international arena, we should keep it, even if that means delaying or even denying justice in some four dozen cases.  In Medellin v. Texas, the Supreme Court said that only Congress can pass the necessary legislation to override state law.  The president cannot do so by executive order.  No such legislation has yet passed.

What we most definitely should not do, however, is abide by the erroneous decision of the International Court of Justice in cases going forward, which we have absolutely no obligation to do.  Senator Patrick Leahy has regularly denounced the failure of our country to abide by its international obligations, and there is some merit in his complaints.  Unfortunately, Senator Leahy has badly overreached and in the process sabotaged his own legislation.  The bills he has introduced would go far beyond the obligation of the United States to abide by this erroneous decision in a relative handful of cases and would instead permanently adopt this error as the law of the United States.

Congress should do it right and carry out our treaty obligations by passing a law providing for new hearings in the specific cases at issue in Avena and otherwise confirming the Supreme Court's correct interpretation of the Vienna Convention in Sanchez-Llamas.


Whatever one thinks of the possibility of Congress enacting implementing legislation (and even if one agrees in the abstract that such legislation should be passed, god only knows what an activist judge would do with it), this situation is an embarrassment to the federal judiciary. Tamayo's execution date was set a while ago, and we have these last minute bogus appeals that aren't resolved. And a family waits.

It's always risky to disagree with someone as learned as Kent. I will in this instance, however.

Under the principles of federalism the Court correctly honored in Medellin, neither the United States nor any international treaty can dictate state law or state legal outcomes that are consistent with the United States Constitution.

Texas is not a little brother of the United States, is not bound by the promises of the United States (see Medellin), is not a signatory to the relevant Convention, and is therefore not bound by it or by the ICJ.

The defendant was properly found guilty, is in fact guilty, and justice has waited long enough. It should proceed.

Here's a link to the Fifth Circuit's decision:


Apparently, the Mexican consulate learned of the prosecution before trial. This, in my view, shows that much more that Rick Perry's resolve was justified.

Tamayo was executed.

My guess is that the reaction of the Mexican people is going to be muted.

Just to be clear, there is no requirement to notify the consulate, unless the foreign national requests it.

This is important, because there is the misconception, planted by some, that either the US failed to contact the consulate on behalf of the foreign nationals or that the US prevented the detained foreign nationals from contacting their consulate.

None of those cases exist.

The US's only violation was that the cops didn't say "hey we'll contact your consulate for you,if you want".

If the foreign national or their attorney felt they wanted or needed consular assistance, they would have contacted them on their own.

They didn't.

Is anyone aware of the US State Depts efforts to notify all US police agencies of this treaty?

And how many detained foreign nationals inform the arresting officer "Hey, I am a foreigner"?.

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