The Issue of Foreign Nationals in the Courts

The case of Humberto Leal Garcia (executed in Texas on July 7, 2011)

Obama Administration and U.N. High Commissioner Seek Relief for Texas Death Row Inmate

Journalist Who Was Arrested Abroad Emphasizes Importance of Consular Access 

Leal’s Petition for Writ of Certiorari to the U.S. Supreme Court (Leal was denied a stay of exe­cu­tion by a vote of 5 – 4 with Justice Breyer writ­ing for the dissent)

Legislation Introduced to Help Enforce Treaty Protecting Those Arrested Outside Their Own Country 

Military and Diplomatic Leaders Urge Reprieve for Foreign National Facing Texas Execution

Medellin: U.S. Supreme Court Exempts Texas Courts from World Court Ruling

On March 25, 2008, the U.S. Supreme Court ruled 6 – 3 in Medellin v. Texas (No. 06 – 984) that the President does not have the author­i­ty to order states to bypass their pro­ce­dur­al rules and com­ply with a rul­ing from the International Court of Justice (ICJ). Even apart from the President’s pow­ers, the Court held that Texas is not oblig­at­ed to give Mr. Medellin an addi­tion­al hear­ing because the Protocol gov­ern­ing the Vienna Convention on Consular Relations is not ​“self-exe­cut­ing” and would require an act of Congress to make it bind­ing on the states. Texas exe­cut­ed Jose Medellin on Aug. 5, 2008.

Earlier Proceedings

On April 30, 2007, the U.S. Supreme Court had agreed to hear Medellin v. Texas to deter­mine whether dozens of Mexican for­eign nation­als on death row in the U.S. are enti­tled to a new hear­ing because they were denied their right to seek con­sular assis­tance upon their arrest. The Bush admin­is­tra­tion and the Mexican gov­ern­ment both urged the Justices to take the case after the Texas Court of Criminal Appeals refused to com­ply with President Bush’s order to state courts to review the cas­es of the 50 Mexican for­eign nation­als who had been denied their rights under the Vienna Convention on Consular Relations. The Bush admin­is­tra­tion’s brief not­ed that the Texas court’s deci­sion, if not reversed, ​“will place the United States in breach of its inter­na­tion­al law oblig­a­tion” to com­ply with the World Court’s deci­sion and would ​“frus­trate the pres­i­den­t’s judg­ment that for­eign pol­i­cy inter­ests are best served by giv­ing effect to that decision.”

Jose Medellin is a Mexican cit­i­zen who has been on Texas’ death row since 1993. This is the sec­ond time his case has come before the U.S. Supreme Court. After the ICJ rul­ing in 2004, Texas refused to review Medellin’s case, and he peti­tioned the U.S. Supreme Court for relief. The Court agreed to hear his case, but before it could be decid­ed, President Bush ordered the respec­tive state courts to pro­vide the review required by the ICJ. The Supreme Court then dis­missed Medellin’s case to allow states time for this review. When Texas courts again refused to grant such a review, claim­ing that President Bush did not have the pow­er to give such an order, Medellin appealed to the Supreme Court for a sec­ond time. The Court had been asked to con­sid­er whether President Bush over­stepped his author­i­ty to order state review of the cas­es and whether state courts are required to com­ply with the ICJ’s rul­ing. (Medellin v. Texas, No. 06 – 984; see N.Y. Times, May 1, 2007.)

Earlier Supreme Court Consideration of Medellin

On December 10, 2004, the U. S. Supreme Court first agreed to hear the case of Jose Medellin to deter­mine what effect the United States should give to a recent rul­ing by the International Court of Justice at the Hague, the United Nations’ high­est court (see below). The case is Medellin v. Dretke, No. 04 – 5928. (Associated Press, December 10, 2004). (Note: This case was dis­missed with­out being decided.)

International Court Finds U.S. in Violation of Treaty

On March 31, 2004 the International Court of Justice (ICJ) decid­ed in favor of Mexico, find­ing that the United States vio­lat­ed the rights of most of the 51 Mexican cit­i­zens cur­rent­ly on death row across the coun­try. The Vienna Convention on Consular Relations, which the U.S. has rat­i­fied, declares that for­eign cit­i­zens shall have the right to speak with diplo­mat­ic offi­cials upon arrest. The Mexican defen­dants named in the suit argued that they were denied that right and the court agreed. The ICJ said that U.S. courts must review the con­vic­tions and sen­tences in each case. At least one of the defen­dants, Osvaldo Torres, is fac­ing an immi­nent exe­cu­tion date in Oklahoma. 

Decision of the ICJ

ICJ Press Release Announcing the Decision

Recent Editorials on the Court’s Decision

DPIC: Foreign Nationals on US Death Rows

DPIC Report: International Perspectives on the Death Penalty