The United States breaches the Vienna Convention on Consular Relations . . . Again
News out of Texas today that it executed Edgar Tamayo, a Mexican national, for killing a police officer, Guy Gaddis. Tamayo was one of the nationals Mexico named in the Avena case. Thus, he fell within the scope of the ICJ’s order that the United States provide ‘review and reconsideration’ of the conviction and sentence of named Mexican nationals in light of the U.S. failure to provide a right to consular access within a reasonable time of their arrest pursuant to the Vienna Convention on Consular Relations (VCCR). Thus, whatever Texas’ interests in ensuring justice was served on someone who killed a police officer, the execution is a clear violation of U.S. obligations under the ICJ Statute (Art. 59), the UN Charter (Art. 94), and, of course, the VCCR itself (Art. 36), given US adherence at the time to the VCCR’s Optional Protocol.
This marks (I believe) the third Mexican national Texas has executed since the ICJ issued its decision in Avena, and since the U.S. Supreme Court declared in Medellin that the US treaty obligations in question are non-self executing, meaning that as a matter of U.S. constitutional law, the Executive is powerless to stop Texas absent further implementation of the VCCR (or other treaties) by federal legislation. The prospects of Congressional action to implement Avena, however, seem pretty dim at this point.
So, what happens now? Will Mexico continue to treat each new execution with the same weight as it has previously? There are still dozens of Mexican nationals to whom the Avena decision had purported to offer relief. I also wonder if the State Department will maintain the same level of lobbying against these executions or if its statements will become more a matter of lip service? I’d note, for example, the extent of federal lobbying seems to be lessening over time — compare Kerry’s comments on Tamayo’s case with the 2008 efforts by the White House, State, and Justice Department to delay Mr. Medellin’s execution). In other words, will the regularity with which these executions (and the arguments surrounding them) seem destined to occur diminish their visibility for either the States themselves or their nationals? Is Mexico’s claim against the United States strengthened or weakened by the United States’ continued inability (or some might say unwillingness) to comply with its international obligations? As a formal matter, one would have to insist that Mexico has more to complain about with each execution. But, on a more practical level, I’d argue Mexico’s chances for relief are likely to diminish the more the international community comes to expect continued U.S. non-compliance with the Avena judgment. That may not be the right result, but I’m thinking it’s the most likely one. What do readers think? Am I missing something?