Council of Europe Calls on Congress to Pass Avena Implementation Law

by Peggy McGuinness

The Council of Europe continues to monitor death penalty practices around the world and call out friendly states that fall short of full abolition.  Last week the Council passed a resolution (full text here) reiterating its support for abolition and calling on Belarus (as a potential member state), Japan and the U.S. to join the consensus of democratic, human rights regarding states by abolishing the death penalty.  Most interesting was the resolution’s focus on implementation of the ICJ’s Avena decision (Mexico v. United States) as a dimension of abolition. I have long argued that the Avena case and the domestic line of cases related to Avena were centrally about U.S. exceptionalism on the death penalty, and this resolution demonstrates that, at least from the European perspective, the death penalty is at the heart of the Consular Convention controversy.  It seems highly unlikely, however, that the U.S. Congress will respond to the Council’s suggestion.  Indeed, it’s perhaps more likely that a push from Europe that focuses on the death penalty will alienate some lawmakers. An approach emphasizing the value of enforcing the Consular Convention in all cases — as argued by John Bellinger — is more likely to win over Congress.

From the Council’s Resolution 1807:

1.       The Parliamentary Assembly reiterates its principled opposition to the death penalty in any circumstances. It takes pride in its successful contribution to ridding almost all of Europe of this inhuman and degrading punishment, by having made abolition of the death penalty a condition for accession to the Council of Europe.


4.       As regards the United States of America, the Assembly:

    4.1.       congratulates those American states which have recently abolished the death penalty (in particular, New Mexico, New Jersey and New York State) and invites others, as well as the federal jurisdiction, to follow their lead;

    4.2. regrets that the arbitrary and discriminatory application of the death penalty in the United States and the public scandals surrounding the different methods of execution in use (lethal injection, electric chair, firing squad) have stained the reputation of this country, which its friends expect to be a beacon for human rights;

    4.3. considers that, particularly in the present time of budgetary constraints, scarce resources are better used to improve crime prevention and to increase the rate of clearance of serious crimes rather than to fight protracted legal battles in order to put to death individual perpetrators.

5.       Also, as regards the Avena (Mexico v. United States of America) judgment of the International Court of Justice, the Assembly urges that:

    5.1. the federal legislature pass legislation enabling those Mexican nationals condemned to death without having been provided with the consular assistance mandated by the Vienna Convention on Consular Relations to be retried following the correct procedures;

5.2. all judicial authorities in the United States be given the possibility to ensure that in future foreign nationals who may be subjected to the death penalty are provided with appropriate consular assistance, in compliance with the international obligations of the United States under the Vienna Convention.

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