Yesterday, at 9:32 p.m., the state of Texas executed Edgar Arias Tamayo, a 46-year-old Mexican national. Injecting lethal drugs into Mr. Tamayo's bloodstream was a clear violation of the United States' international obligations, and yet the state of Texas wasn't deterred.
What's going on here? The short answer: a deadly combination of a blood-thirsty state and a stalled Congress.
Let's start with the state. Texas' death penalty system is notorious. Despite well-founded concerns about innocent people ending up on death row, racial bias, inadequate assistance of counsel, and a whole host of other problems, Texas has put 509 people to death in the last three decades. These executions continue despite the fact that six other states have repealed the death penalty in the last six years (and three other states – Delaware, Nebraska, and Colorado – have come close). Texas remains one of the reasons that the U.S. is an outlier among democratic nations, ranking 5th in the world in the number of executions, after China, Iran, Iraq, and Saudi Arabia.
And now to our stalled Congress. In 2004, the International Court of Justice (ICJ) found that Mr. Tamayo and 50 other Mexican death row prisoners in the United States were denied their right to contact their consular representatives upon their arrest and without delay. This denial violates the Vienna Convention on Consular Relations, which the United States ratified without reservations in 1969. The ICJ ordered the United States to provide effective "review and consideration" of their convictions and sentences in order to determine in each case if the denial of access to consular assistance was prejudicial. The problem is that the states have been given a free pass to violate this treaty, as Texas did in executing Mr. Tamayo.
Here's what happened. In 2008, the Supreme Court decided that the Vienna Convention Optional Protocol concerning the Compulsory Settlement of Disputes is not self-executing treaty that would have binding effect in the domestic courts and that the President did not have the authority to enforce the ICJ decision unilaterally. The Court decided that Congress needs to pass legislation in order to implement the ICJ judgment. Congress, unsurprisingly, has dragged its feet. The result: an illegal loophole states are exploiting to execute foreign nationals in violation of international law.
What Texas did last night was wrong. As long as Texas is part of the Union, it remains obligated to abide by U.S. international obligations, including ratified treaties, which are considered the law of the land under the U.S. Constitution's Supremacy Clause.
But Texas is not the only one who has done something wrong. Just last week, Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, harshly criticized the House of Representatives for rejecting a Senate provision in the 2014 Consolidated Appropriations Act that would have brought the U.S. into compliance with the Vienna Consular Convention. He made this powerful argument:
By not including this provision we jeopardize the essential right of consular assistance for Americans arrested in foreign countries, and weaken our credibility as a nation that respects the rule of law.
We couldn't agree more.
Next March, the United States' untenable position on the death penalty will be subject to a review by the United Nations Human Rights Committee, a body of independent experts that monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), a treaty the United States ratified in 1992. In a shadow report to the committee, the ACLU highlighted the system's many flaws, including the fact that the death penalty is applied in arbitrary and discriminatory manner without affording vital due process rights, such as access to effective counsel and the right to remedy to halt executions - not to mention that methods of execution and death row conditions have been condemned as cruel, inhuman, or degrading.
The train has left the station. It is only a matter of time until all states join the evolving international consensus that rejects the legal and moral foundation of the death penalty. Unfortunately, it will be at higher human cost and unacceptable flouting of international law.